III.

TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
b. Attestation and Subscription

Jaboneta vs. Gustilo

G. R. No. 1641, January 19, 1906
FACTS:
On the 26th day of December, 1901, Macario Jaboneta executed his will in the residence of
Arcadio Jarandilla. He ordered that the document in question be written, and calling Julio
Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses. They were all together, and were in
the room where Jaboneta was, and were present when he signed the document, Isabelo Jena
signing afterwards as a witness, at his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then sighned as a witness in the presence of the testator,
and in the presence of the other two persons who signed as witnesses. At that moment, Isabelo
Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the house, Julio
Javellana took the pen in his hand and put himself in a position to sign the will as a witness, but
did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the
said Julio Javellana signed as witness in the presence of the testator and of the witness Aniceto
Jalbuena.

ISSUE:
Whether the signature of Javellana was signed in the presence of Jena in compliance with the
provisions of section 618 of the Code of Civil Procedure

HELD:
Yes. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in
the act of affixing his signature to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign his name to the will,
convinced the court that the signature was affixed in the presence of Jena. The fact that he was in
the act of leaving, and that his back was turned while a portion of the name of the witness was
being written, is of no importance. He, with the other witnesses and the testator, had assembled
for the purpose of executing the testament, and were together in the same room for that purpose,
and at the moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he could see everything
which took place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so, therefore we are of opinion that the document was in fact
signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence of the testator is said
to be that the testator may have ocular evidence of the identity of the instrument subscribed by
the witness and himself, and the generally accepted tests of presence are vision and mental
apprehension.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
b. Attestation and Subscription

Neyra vs. Neyra

C.A. No. 8075, March 25, 1946
FACTS:
Sisters Encarnacion Neyra and Trinidad Neyra had serious misunderstandings in connection with
the properties left by their deceased father. Encarnacion, who had remained single, and who had
no longer any ascendants, executed a will disposing of her properties in favor of the
"Congregacion de Religiosas de la Virgen Maria" and her other relatives, making no provision in
favor of her only sister of the whole blood, Trinidad Neyra. The Congregation refused to accept
the property, which necessitated the making of another will.
Eventually, the two sisters got reconciled and executed a compromise agreement with respect to
the properties left by their father. Furthermore, in her new will and testament, Encarnacion
named Trinidad Neyra and Eustaquio Mendoza beneficiaries. The other instituted heirs in the
first will claimed that the will was void because Encarnacion did not sign in the presence of the
witnesses.

ISSUE:
Whether or not the will is valid.

HELD:
Yes. The court held that the witnesses were present, at the time of the signing and execution of
the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true
test is not whether they actually saw each other at the time of the signing of the documents, but
whether they might have seen each other sign, had they chosen to do so; and the attesting
witnesses actually saw it all in this case.
Teodora and her principal witnesses are all interested parties, as they are children of legatees
named in the first will but eliminated from the second will. Their testimony that there could have
been no reconciliation between the two sisters, and that the thumb mark of testator was affixed to
the documents embodying the agreement, while she was sleeping in their presence; and that her
thumb mark was affixed to the will in question, when she was already dead within their view, is
absolutely devoid of any semblance of truth. Said testimony is contrary to common sense. It
violates all sense of proportion.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
c. Marginal Signatures

Abangan vs. Abangan

G.R. No. L-13431 12 November 1919
FACTS:
The dispute started when the Court of First Instance of Cebu admitted to probate the will of Ana
Abangan executed July 1916. The appellant Anastacia Abangan averred that the said document
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. It has also been alleged that the testatrix did not know the dialect in which the will was
written.

ISSUE:
Whether the will should have been disallowed.

HELD:
No. The will was duly admitted to probate. As regards the marginal signature, such is only
applicable when the will is written on several sheets. The object of which is to avoid the
substitution of any of the said sheets, thereby changing the testator’s dispositions. In the case at
bar, the marginal signatures of the testator and three witnesses would be completely unnecessary
for involved here was a two-paged will only.
The contention the requisite of pagination and numbering was also untenable. Act No. 2645
requires such in order to know whether any sheet of the will has been removed. However, 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.
The issue on the language or dialect was also untenable. The circumstance appearing in the will
itself that same was executed in the city of Cebu and in the dialect of the locality where the
testator was a neighbor is enough, in the absence of any proof to the contrary, to presume that
she knew this dialect in which the will is written.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
c. Marginal Signatures

Avera vs. Garcia

42 P 145 September 14, 1921
FACTS:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one
Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the
capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for
the hearing, the proponent of the will introduced one of the three attesting witnesses who
testified with details not necessary to be here specified that the will was executed with all
necessary external formalities, and that the testator was at the time in full possession of disposing
faculties. Upon the latter point the witness was corroborated by the person who wrote the will at
the request of the testator. Two of the attesting witnesses were not introduced, nor was their
absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose
testimony tended to show in a vague and indecisive manner that at the time the will was made
the testator was so debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial
judge found that the testator at the time of the making of the will was of sound mind and
disposing memory and that the will had been properly executed. He accordingly admitted the
will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will.

ISSUE:
1) Whether a will can be admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the absence of the other two.
2) Whether the will in question is rendered invalid by reason of the fact that the signature of the
testator and of the three attesting witnesses are written on the right margin of each page of the
will instead of the left margin.

HELD:
1) When the petition for probate of a will is contested, the proponent should introduce all three of
the attesting witnesses, if alive and within reach of the process of the court; and the execution of
the will cannot be considered sufficiently proved by the testimony of only one, without
satisfactory explanation of the failure to produce the other two.
2) The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution o will 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. 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 frustrative of the testator's
last will, must be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice to any person, as
attendant upon the actual deviation from the letter of the law, such deviation must be considered
too trivial to invalidate the instrument.
A will otherwise properly executed in accordance with the requirements of existing law is not
rendered invalid by the fact that the paginal signatures of the testator and attesting witnesses
appear in the right margin instead of the left.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
c. Marginal Signatures

Icasiano vs. Icasiano

G.R. No. L-18979 June 30, 1964
FACTS:
Testator Josefa Villacorte died in the City of Manila on September 12, 1958. On June 2, 1956,
the she executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental
witnesses. The will was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City
of Manila.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that
he may have lifted two pages instead of one when he signed the same, but affirmed that page
three (3) was signed in his presence.

ISSUE:
Whether the requirement of marginal signatures has been validly complied with.

HELD:
Yes. The court held that inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only 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 full 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".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause and the acknowledgment before
the Notary Public likewise evidence that no one was aware of the defect at the time.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
d. Pagination/ Numbering

Samaniego-Celada vs. Abena

G.R. No. 145545
FACTS:
Petitioner Paz Samaniego-Celadawas the first cousin of decedent Margarita S.Mayores
(Margarita) while respondent was the decedents lifelong companion since 1929. In1987,
Margarita died single and without any ascending or descending heirs as her parents, grandparents
and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-
Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament of her real properties in favor of
respondent Margarita also left all her personal properties to respondent whom she likewise
designated as sole executor of her will. Petitioner filed a petition for letters of administration of
the estate of Margarita . Respondent filed a petition for probate of the will of Margarita before
the RTC of Makati.
RTC rendered a decision declaring the last will and testament of Margarita probated and
respondent as the executor of the will. The CA affirmed in toto the RTC ruling. Petitioner, in her
Memorandum, argues that Margaritas will failed to comply with the formalities required under
Article 805 of the Civil Code. The contestants submitted that the will is fatally defective for the
reason that its attestation clause states that the will is composed of three (3) pages while in truth
and in fact, the will consists of two (2) pages only because the attestation is not a part of the
notarial will.

ISSUE:
Whether the requirement of pagination was validly complied with.

HELD:
Yes. While it is true that the attestation clause is not a part of the will, the court, after examining
the totality of the will, is of the considered opinion that error in the number of pages of the will
as stated in the attestation clause is not material to invalidate the subject will. It must be noted
that the subject instrument is consecutively lettered with pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of some of the pages. The error must have been
brought about by the honest belief that the will is the whole instrument consisting of three (3)
pages inclusive of the attestation clause and the acknowledgement. The position of the court is in
consonance with the doctrine of liberal interpretation enunciated in Article 809 of the Civil Code
which reads:
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.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
d. Pagination/ Numbering

Fernandez vs. Vergel

G.R. No. L-21151, February 25, 1924
FACTS:
The question in this case is as to the validity of the will of the late Antonio Vergel de Dios,
which was propounded by Ramon Fernandez for probate, and contested by Fernando Vergel de
Dios and Francisco, Ricardo and Virgilio Rustia. One of the contentions was as to the numbering
of the pages of the will.

ISSUE:
Whether the requirement of pagination/numbering was validly complied with.

HELD:
Yes. As to the numbering of the sheet containing the attestation clause, it is true that it does not
appeal on the upper part of the sheet, but it does appear in its text. It is provided in the clause that
the will is ―of three sheets actually used, correlatively enumerated, besides this sheet . . . .” It is
clear that such a sheet of the attestation clause is the fourth and that the will, including said sheet,
has four sheets. This description contained in the clause constitutes substantial compliance with
the requirements prescribed by the law regarding the paging. The law does not require that the
sheet containing the attestation clause only, wholly or in part, be numbered or paged.
Consequently this lack of paging on the attestation sheet does not take anything from the validity
of the will.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
d. Pagination/ Numbering

Lopez vs. Liboro

G.R. No. L-1787, August 27, 1948
FACTS:
Appellant opposes the probate of what purports to be the last will and testament of Don Sixto
Lopez. The will in question comprises two pages, each of which is written on one side of a
separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.

ISSUE:
Whether or not the will is invalid because the first sheet is not paged either in letters nor in
Arabic numerals?

HELD:
No. The will is valid. The purpose of the law in prescribing the paging of wills is guard against
fraud, and to afford means of preventing the substitution or of defecting the loss of any of its
pages.
In the present case, the omission to put a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than the conventional numerical
words or characters. The unnumbered page is clearly identified as the first page by the internal
sense of its contents considered in relation to the contents of the second page. By their meaning
and coherence, the first and second lines on the second page are undeniably a continuation of the
last sentence of the testament, before the attestation clause, which starts at the bottom of the
preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that the testator was in full use of his testamentary
faculty, — all of which, in the logical order of sequence, precede the direction for the disposition
of the marker's property. Again, as page two contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet
cannot by any possibility be taken for other than page one.
III. TESTAMENTARY SUCCESSION
D. NOTARIAL WILLS
d. Pagination/ Numbering

Abangan vs. Abangan

The dispute started when the Court of First Instance of Cebu admitted to probate the will of Ana
Abangan executed July 1916. The appellant Anastacia Abangan averred that the said document
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 numbered.

ISSUE:
Whether omission of the numbering is a fatal defect on the subject will.

HELD:
No. Act No. 2645 requires such in order to know whether any sheet of the will has been
removed. However, 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.