Cañeda v. CA, 222 SCRA 781

9/22/21, 10:29 AM SUPREME COURT REPORTS ANNOTATED VOLUME 222
VOL. 222, MAY 28, 1993 781

Caneda vs. Court of Appeals
*
G.R. No. 103554. May 28, 1993.
TEODORO CANEDA, LORENZA CANEDA, TERESA

CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented
**
herein by his Attorney-in-Fact,
ARMSTICIA ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners, vs. HON. COURT OF APPEALS
and WILLIAM CABRERA, as Special Administrator of
the Estate of Mateo Caballero, respondents.
Wills and Succession; There are two (2) kinds of wills.—In

addition, the ordinary will must be acknowledged before a notary
public by the testator and the attesting witnesses, hence it is
likewise known as a notarial will. Where the testator is deaf or a
deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons
who will read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind,
the will should be read to him twice; once, by anyone of the
witnesses thereto, and then again, by the notary public before
whom it is acknowledged. The other kind of will is the holographic
https://central.com.ph/sfsreader/session/0000017c0b5a434d8f33d9d9000d00d40059004a/t/?o=False 1/31
will, which Article 810 defines as one that is entirely written,

dated, and signed by the hand of the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by
witnesses. A common requirement in both kinds of wills is that
they should be in writing and must have been executed in a
language or dialect known to the testator.
Same; Attestation clause valid even if in a language not

known to testator.—However, in the case of an ordinary or
attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form
part of the testamentary disposition. Furthermore, the language
used in the attestation clause likewise need not even be known to
the attesting witnesses. The last paragraph of
_______________
* SECOND DIVISION.
** The first name of this representative party petitioner is also spelled

“Armistica” in the corresponding allegation of the petition.
782
782 SUPREME COURT REPORTS ANNOTATED
Article 805 merely requires that, in such a case, the attestation

clause shall be interpreted to said witnesses.
Same; Purposes of attestation clause.—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; whereas the subscription of the
signatures of the testator and the attesting witnesses is made for
the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by
the testator and attested to by the witnesses.
Same; Same.—Further, by attesting and subscribing to the

will, the witnesses thereby declare the due execution of the will as
embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due execution
of a will and to insure the authenticity thereof. As it appertains
only to the witnesses and not to the testator, it need be signed
only by them. Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator and
the witnesses.
Same; Words and Phrases; “Attestation” and “Subscription”

distinguished.—It will be noted that Article 805 requires that the
witnesses should both attest and subscribe to the will in the
presence of the testator and of one another. “Attestation” and
“subscription” differ in meaning. Attestation is the act of the
senses, while subscription is the act of the hand. The former is
mental, the latter mechanical, and to attest a will is to know that
it was published as such, and to certify the facts required to
constitute an actual and legal publication; but to subscribe a
paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification.
Same; Attestation clause which does not state that testament

“was signed by the witnesses in the presence of one another and of
the testator” renders the will null and void.—What is fairly
apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that

were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other. The phrase “and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left
hand margin,” obvi-
783
VOL. 222, MAY 28, 1993 783
ously refers to the testator and not the instrumental witnesses as

it is immediately preceded by the words “as his Last Will and
Testament.” On the other hand, although the words “in the
presence of the testator and in the presence of each and all of us”
may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said
phrase immediately follows the words “he has signed the same
and every page thereof, on the spaces provided for his signature
and on the left hand margin.” What is then clearly lacking, in the
final logical analysis, is the statement that the witnesses signed the
will and every page thereof in the presence of the testator and of
one another. It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here
sought to be admitted to probate.
Same; Mere defects in form in the attestation clause do not

render will void.—We stress once more that under Article 809, the
defects or imperfections must only be with respect to the form of
the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved

that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.
Same; Same; Defects in attestation clause which require

submission of parol evidence not mere defects of form.—In the case
at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by
extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from which such
facts may be plausibly deduced. What private respondent insists
on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be
doing by indirection what in law he cannot do directly.
Same; Same; Same.—It 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
784
invalidation of the attestation clause and ultimat ely, of the will

itself.
PETITION for review on certiorari of the decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.

Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
REGALADO, J.:
Presented for resolution by this Court in the present

petition for review on certiorari is the issue of whether or
not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of
the Civil Code.
The records show that on December 5, 1978, Mateo
Caballero, a widower without any children and already in
the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public,1 Atty. Filoteo Manigos, in the preparation of
that last will. It was declared therein, among other things,
that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, 2
all of
whom do not appear to be related to the testator.
Four months, later, or on April 4, 1979, Mateo
Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court
of First Instance of Cebu seeking the probate of his last
will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent

scheduled hearings were postponed for one reason or
another. On May 29, 1980, the testator passed away
_______________
1 Original Record, 1-3.

2 Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.
785
VOL. 222, MAY 28, 1993 785

before 3his petition could finally be heard by the probate

court. On February 25, 1981, Benoni Cabrera, one of the
legatees named in the will, sought his appointment as
special administrator of the testator’s estate, the
estimated value of which was P24,000.00, and he was so
appointed
4
by the probate court in its order of March 6,
1981.
Thereafter, herein petitioners, claiming to be nephews
and nieces of the testator, instituted a second petition,
entitled “In the Matter of the Intestate Estate of Mateo
Caballero” and docketed as Special Proceeding No. 3965-
R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition for intestate
proceedings consolidated with Special Proceeding No.
3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the testator’s will
and the5 appointment of a special administrator for his
estate.
Benoni Cabrera died on February &, 1982 hence the
probate court, now known as Branch XV of the Regional
Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on

July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the archives
since the testate proceedings for the probate of the will
had to be heard and resolved first. On March 26, 1984 the
case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it6 remained
until the conclusion of the probate proceedings.
In the course of the hearing in Special Proceeding No.
3899-R, herein petitioners appeared as oppositors and
objected to the allowance of the testator’s will on the
ground that on the alleged date of its execution, the
testator was already in a poor state of health such that he
could not have possibly executed the same. Petitioners
likewise reiterated the issue as to
7
the genuineness of the
signature of the testator therein.
_______________
3 Original Record, 1-3, 7, 24, 32.

4 Ibid., 32-34.
5 Ibid., 68-69, 157.
6 Ibid., 98, 116, 143, 148, 157-159.
7 TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.
786

On the other hand, one of the attesting witnesses,

Cipriano Labuca, and the notary public, Atty. Filoteo
Manigos, testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was
not unduly influenced in any way in the execution of his

will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the
testator and of each other. The other two attesting
witnesses were not presented
8
in the probate hearing as
they had died by then.
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and
testament of the late Mateo Caballero, on the
ratiocination that:
“x x x The self-serving testimony of the two witnesses of the

oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court
that indeed Mateo Caballero executed this Last Will and
Testament now marked Exhibit ‘C’ on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated
the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit ‘D’ clearly
underscores the fact that this was indeed his Last Will. At the
start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit ‘C’ examined by a
handwriting expert of the NBI but it would seem that despite
their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit ‘C’, nothing came out of it
because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the
oppositors.
“All told, it is the finding of this Court that Exhibit ‘C’ is the
Last Will and Testament of Mateo Caballero and 9that it was
executed in accordance with all the requisites of law.”
Undaunted by said judgment of the probate court,

petitioners elevated the case to the Court of Appeals in
CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and
_____________
8 TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-
18.
9 Original Record, 339-340; per Judge Francis J. Militante.
787
VOL. 222, MAY 28, 1993 787

void for the reason that its attestation clause is fatally

defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the
testator and of one another.
On October
10
15, 1991, respondent court promulgated its
decision affirming that of the trial court, and ruling that
the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code,
thus:
“The question therefore is whether the attestation clause in

question may be considered as having substantially complied with
the requirements of Art. 805 of the Civil Code. What appears in
the attestation clause which the oppositors claim to be defective
is ‘we do certify that the testament was read by him and the
testator, Mateo Caballero, has published unto us the foregoing
will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters on
the upper part of each page, as his Last Will and Testament, and
he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of
us’ (Italics supplied).
“To our thinking, this is sufficient compliance and no evidence

need be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language
of the law would have it that the testator signed the will ‘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 not completely or
ideally perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated11
is in substantial compliance with
the requirement of the law.”
Petitioners moved for the reconsideration of said ruling

of respondent court, but the same was 12
denied in the
latter’s resolution of January 14, 1992, hence this appeal
now before us.
____________
10 Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno

and Jaime D. Lantin, concurring.
11 Rollo, 9.
12 Ibid., 33.
788

Petitioners assert that respondent court has ruled upon

said issue in a manner not in accord with the law and the
settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation
clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we

shall shortly hereafter explain, after some prefatory
observations which we feel should be made in aid of the
rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance

whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree
13
the
disposition of his estate after his death. Under
the Civil Code, there are
14
two kinds of wills which a
testator may execute. The first kind is the
ordinary or attested will, the execution of which is
governed by Articles 804 to 809 of the Code.
Article 805 requires that:
“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.”
In addition, the ordinary will must be acknowledged before

a
_____________
13 Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.
14 Report of the Code Commission, 103-105.
789
VOL. 222, MAY 28, 1993 789

15
notary public by the testator and the attesting witnesses,
hence it is likewise known as a notarial will. Where the
testator is deaf or a deaf-mute, Article 807 requires that he
must personally read the will, if able to do so. Otherwise,
he should designate two persons who will read the will and
communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should
be read to him twice; once, by anyone of the witnesses
thereto, and then again,
16
by the notary public before whom
it is acknowledged.
The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written, dated,
and signed by the hand of the testator himself. This kind
of will, unlike the ordinary type, requires no attestation
by witnesses. A common requirement in both kinds of wills
is that they should be in writing and must have been 17
executed in a language or dialect known to the testator.
However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or
dialect known to the testator since it does not form part of
the testamentary disposition. Furthermore, the language
used in the attestation clause likewise
18
need not even be
known to the attesting witnesses. The last paragraph of
Article 805 merely requires that, in such a case, the

attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary
will whereby the attesting witnesses certify that the
instrument has been executed before 19them and to the
manner of the execution of the same. It is a separate
memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the 20
essential formalities required by law has been observed.
It is made for the purpose of preserving in a permanent
form a record
______________
15 Art. 806, Civil Code.

16 Art. 808, id.
17 Art. 804, id.
18 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).
19 Testate Estate of Paula Toray, 87 Phil. 139 (1950).
20 Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).
790

of the fact that attended the execution of a particular will,

so that in case of failure of the memory of the attesting
witnesses,
21
or other casualty, such facts may still be
proved.
Under the third paragraph of Article 805, such a clause,
the complete 22
lack of which would result in the invalidity
of the will, should state (1) the number of pages used
upon which the will is written; (2) that the testator signed,
or expressly caused another to sign, the will and every
page thereof in the presence of the attesting witnesses; and

(3) that the attesting witnesses witnessed the signing by
the testator of the will and all its pages, and that said
witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
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 pages23 and to prevent any increase or
decrease in the pages; whereas the subscription of the
signatures of the testator and the attesting witnesses is
made for the purpose of authentication and identification,
and thus indicates that the will is the very same
instrument executed
24
by the testator and attested to by
the witnesses.
Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution
25
of the will as
embodied in the attestation clause. The attestation
clause, therefore, provides strong legal guaranties for the
due execution
26
of a will and to insure the authenticity
thereof. As it appertains only to the witnesses27
and not to
the testator, it need be signed only by them. Where it is
left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and the
_______________
21 Leynez vs. Leynez, 68 Phil. 745 (1939).

22 In re Estate of Neumark, 46 Phil. 841 (1923).
23 In The Matter of the Estate of Sanguinsin, 41 Phil. 875 (1920); In re
Will of Andrada, 42 Phil. 180 (1921).
24 Testate Estate of Paula Toray, supra.
25 Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).
26 Echevarria vs. Sarmiento, 66 Phil. 611 (1938).
27 Abangan vs. Abangan, 40 Phil. 476 (1919).
791
VOL. 222, MAY 28, 1993 791

28
witnesses.
In its report, the Code Commission commented on the
reasons of the law for requiring the formalities to be
followed in the execution of wills, in the following manner:
“The underlying and fundamental objectives 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 29
with
respect to the formalities in the execution of wills. x x x”
2. An examination of the last will and testament of

Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered
correlatively, with the left margin of each page
thereof bearing the respective signatures of the
testator and the three attesting witnesses. The
part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan
dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the
other hand, is recited in the English language and
is likewise signed at the end 30thereof by the three
attesting witnesses thereto. Since it is the
proverbial bone of contention, we reproduce it
again for facility of reference:
“We, the undersigned attesting Witnesses, whose Residences and

postal addresses appear on the Opposite of our respective names,
we do hereby certify that the Testament was read by him and
the testator, MATEO CABALLERO, has published unto us the
foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in letters on
the upper part of each page, as his Last Will and Testament and
he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all
of us.”
______________
28 Cagro vs. Cagro, 92 Phil. 1032 (1953).

29 Report of the Code Commission, 103.
30 Exhibits C to C-18; Folder of Exhibits in Special Proceeding No.
3899-R, 7-9; Original Record, 4-6.
792

It will be noted that Article 805 requires that the witnesses

should both attest and subscribe to the will in the
presence of the testator and of one another. “Attestation”
and “subscription” differ in meaning. Attestation is the act
of the senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest
a will is to know that it was published as such, and to
certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is
only to write on the same paper the names 31
of the
witnesses, for the sole purpose of identification.
32
32
In Taboada vs. Rosal, we clarified that 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. As it involves a mental act, there would be
no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other
unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically state
the fact that the attesting witnesses witnessed the
testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and
every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the
same does not expressly state therein the circumstance
that said witnesses subscribed their respective
_____________
31 Hills vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A., 1918B 687.
32 118 SCRA 195 (1982).
793
VOL. 222, MAY 28, 1993 793

signatures to the will in the presence of the testator and

of each other.
The phrase “and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin,” obviously refers to the testator and
not the instrumental witnesses as it is immediately
preceded by the words “as his Last Will and Testament.”
On the other hand, although the words “in the presence of
the testator and in the presence of each and all of us”
may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of
the witnesses since said phrase immediately follows the
words “he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand
margin.” What is then clearly lacking, in the final logical
analysis, is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and
of one another.
It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously
cannot be characterized as merely involving the form of
the will or the language used therein which would warrant
the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the
Civil Code, to wit:
“Art. 809. 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” (Italics supplied.)
While it may be true that the attestation clause is indeed

subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly
cannot be conclusively inferred therefrom that the said
witnesses affixed their respective signatures in the
presence of the testator and of each other since, as
petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed
signed, but
794

it does not prove that the attesting witnesses did subscribe

to the will in the presence of the testator and of each
other. The execution of a will is supposed to be one act so
that where the testator and the witnesses sign on various
days or occasions and in various combinations, the33 will
cannot be stamped with the imprimatur of effectivity.
We believe that 34the following comment of former
Justice J.B.L. Reyes regarding Article 809, wherein he
urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in
the case under consideration, as well as to future cases
with similar questions:
“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.” (Emphasis
ours.)
3. We stress once more that under Article 809, the

defects or imperfections must only be with respect
to the form of the attestation or the language
employed therein. Such defects or imperfections
would not render a will invalid should it be proved
that the will was really executed and attested in
compliance with Article 805. In this regard,
however, the manner of proving the due execution
and attestation has been held to be limited to
merely an examination of the will itself without
resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply where the

attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the
_____________
33 Andalis vs. Pulgueras, 59 Phil. 643 (1934).

34 Lawyer’s Journal, November 30, 1950, 566, cited in Tolentino, op.
cit., supra, note 17 at 111-112.
795
VOL. 222, MAY 28, 1993 795

35
testator and of each other. In such a situation, the defect
is not only in the form or the language of the attestation
clause but the total absence of a specific element required
by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by
which we can read into the questioned attestation clause
any statement, or an implication thereof, that the attesting
witnesses did actually bear witness to the signing by the
testator of the will and all its pages and that said
instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in
Article 809 cannot be invoked or relied on by respondents
since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or
from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual
requirements were actually complied with in the execution
of the will. In other words, the defects must be remedied
by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required
to have been performed by the attesting witnesses can be
supplied only by extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis
whatsoever from which such facts may be plausibly
deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting
to extrinsic evidence to prove the same and would
accordingly be doing by indirection what in law he cannot

do directly.
4. Prior to the advent of the Civil Code on August 30,
1950, there was a divergence of views as to which manner
of interpretation should be followed in resolving issues
centering on compli-
______________
35 Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50

Phil. 30 (1927); Quinto vs. Morata, 54 Phil. 481 (1930); Rodriguez vs.
Alcala, 55 Phil. 150 (1930); Testate Estate of Paula Toray, supra; Gil vs.
Marciano, 88 Phil. 261 (1951).
796

ance with the legal formalities required in the execution of

wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil
Procedure. Said decision was later amended by Act No.
2645, but the provisions respecting said formalities found
in Act No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advanced the liberal or substantial compliance
rule. This36was first laid down in the case of Abangan vs.
Abangan, where it was held that the object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution
of wills 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. Nonetheless, it was also emphasized that 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, hence when an interpretation already given
assures such ends, any other interpretation whatsoever
that adds nothing but demands more requisites entirely
unnecessary, useless and fnistrative of the testator’s last
will, must 37be disregarded. The38 subsequent cases 39
of Avera
vs. Garcia, 40Aldaba vs. Roque, Unson vs. Abella, Pecson 41
vs. Coronel, Fernandez 42
vs. Vergel de Dios, et al., and
Nayve vs. Mojal, et al. all adhered to this position. The
other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent
43
cases of
In the Matter
44
of the Estate of Saguinsin, In re Will of
Andrada, Uy Coque vs.
_______________
36 40 Phil. 476 (1919).

37 42 Phil. 145 (1921).
38 43 Phil. 378 (1922).
39 43 Phil. 494 (1922).
40 45 Phil. 216 (1923).
41 46 Phil. 922 (1924).
42 47 Phil. 152 (1924).
43 41 Phil. 875 (1920).
44 42 Phil. 180 (1921).
797
VOL. 222, MAY 28, 1993 797

45 46
Sioca, In47
re Estate of Neumark, and Sano vs.
Quintana.
48
48
Gumban vs. Gorecho, et al., provided the Court with
the occasion to clarify the seemingly conflicting decisions
in the aforementioned cases. In said case of Gumban, the
attestation clause had failed to state that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:
“In support of their argument on the assignment of error above-

mentioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada
([1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca ([1922], 43
Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506),
Appellee counters with the citation of a series of cases beginning
with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil. 378), and Fernandez
vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in
Nayve vs. Mojal and Aguilar ([1924], 47 Phil. 152). In its last
analysis, our task is to contrast and, if possible, conciliate, the
last two decisions cited by opposing counsel, namely, those of
Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar,
supra.
“In the case of Sano vs. Quintana, supra, it was decided that
an attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal
and Aguilar, supra, wherein it was held that the attestation
clause must state the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on

the document itself, and the omission to state such evident facts
does not invalidate the will.
_______________
45 43 Phil. 405 (1922).

46 46 Phil. 841 (1923).
47 48 Phil. 506 (1925).
48 50 Phil. 30 (1927).
798

“It is a habit of courts to reaffirm or distinguish previous cases;

seldom do they admit inconsistency in doctrine. Yet here, unless
aided by casuistry of the extreme type, it would be impossible to
reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely
on the other, we reverse.
“In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the
Mojal decision was concurred in by only four members of the
court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of
the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December
1925; the Quintana decision was thus subsequent in point of
time. And in the third place, the Quintana decision is believed
more nearly to conform to the applicable provisions of the law.
“The right to dispose of property by will is governed entirely
by statute. The law of the case is here found in section 61 of the
Code of Civil Procedure, as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part

provided in section 61, as amended that ‘No will * * * shall be
valid * * * unless * * *.’ It is further provided in the same section
that The attestation shall state the number of sheets or 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 three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other.’ Codal section 634 provides that ‘The
will shall be disallowed in either of the following cases: 1. If not
executed and attested as in this Act provided.’ The law not alone
carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard
the legislative purpose so emphatically and clearly expressed.
“We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.”
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there

were decisions of the Court that once more appeared to
revive the seeming diversity of views that was earlier 49
threshed out therein.50
The cases of Quinto vs. Morata,
Rodriguez vs. Alcala,
_______________
49 54 Phil. 481(1930).
50 55 Phil. 150 (1930).
799
VOL. 222, MAY 28, 1993 799

51 52
51 52
Echevarria vs. Sarmiento, and Testate Estate of Toray
went the way of the ruling 53
as restated in Gumban.
54
But De
Gala vs. Gonzales,55
et al., Rey vs. Cartagena,56 De Ticson
vs. De Gorostiza,
57
Sebastian
58
vs. Panganiban,59 Rodriguez
vs. Yap,60 Grey vs. Fabia, Leynez 61
vs. Leynez, Martir vs.62
Martir, Alcala vs. 63De Villa, Sabado vs.64 Fernandez,
Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away
from the strict interpretation rule and established a trend
toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination towards
a liberal construction, recommended the codification of the
substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach
to the interpretation of wills. Said rule thus became what
is now Article 809 of the Civil Code, with this explanation
of the Code Commission:
“The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in
disposing of his property.
“However, in recent years the Supreme Court changed its
atti-
_______________
51 66 Phil. 611 (1933).

52 87 Phil. 139 (1950).
53 53 Phil. 104 (1929).
54 56 Phil. 282 (1931).

55 57 Phil. 437 (1932).
56 59 Phil. 653 (1934).
57 68 Phil. 126 (1939).
58 68 Phil. 128 (1939).
59 68 Phil. 745 (1939).
60 70 Phil. 89 (1940).
61 71 Phil. 561 (1940).
62 72 Phil. 531 (1941).
63 72 Phil. 546 (1941).
64 81 Phil. 429 (1948).
800

tude and has become more liberal in the interpretation of the

formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
“In the above mentioned decisions of our Supreme Court, it
has practically gone back to the original provisions of Section 618
of the Code of Civil Procedure before its amendment by Act No.
2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code
in the liberalization of the manner of executing wills, article 829
of the Project is recommended, which reads:
‘ART. 829. 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
65
substantial compliance with all the requirements of article 829.’ ”
The so-called
66
liberal rule, the Court said in Gil vs.
Murciano, “does not offer any puzzle or difficulty, nor does
it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the
dividing line with, precision. They do not allow evidence
aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They
only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law.
This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results.”
It 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 67
the attestation clause and ultimately, of
the will itself.
______________
65 Report of the Code Commission, 104-105.

66 88 Phil. 260, 281 (1951).
67 Tolentino, op. cit., supra, note 17 at 111.
801
VOL. 222, MAY 31, 1993 801

People vs. Jotoy
WHEREFORE, the petition is hereby GRANTED and the

impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special

Proceeding No. 3899-R (Petition for the Probate of the
Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the Matter of
the Intestate Estate of Mateo Caballero) as an active
case and thereafter duly proceed with the settlement of
the estate of the said decedent.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Nocon, JJ.,

concur.
Petition granted. Decision reversed and set aside.
Notes.—Persons convicted of falsification of a document,

perjury or false testimony are disqualified from being
witnesses to a will (People vs. Umali, 193 SCRA 493).
Failure to attach will to petition not critical where it was
adduced in evidence (Heirs of Fran vs. Salas, 210 SCRA
303).
——o0o——
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9/22/21, 10:29 AM SUPREME COURT REPORTS ANNOTATED VOLUME 222

VOL. 222, MAY 28, 1993 781

TEODORO CANEDA, LORENZA CANEDA, TERESA

Wills and Succession; There are two (2) kinds of wills.—In

will, which Article 810 defines as one that is entirely written,

Same; Attestation clause valid even if in a language not

** The first name of this representative party petitioner is also spelled

782 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

Article 805 merely requires that, in such a case, the attestation

Same; Purposes of attestation clause.—The purpose of the law

omission of one or some of its pages and to prevent any increase

Same; Same.—Further, by attesting and subscribing to the

Same; Words and Phrases; “Attestation” and “Subscription”

Same; Attestation clause which does not state that testament

attesting witnesses and states as well the number of pages that

VOL. 222, MAY 28, 1993 783

Caneda vs. Court of Appeals

ously refers to the testator and not the instrumental witnesses as

Same; Mere defects in form in the attestation clause do not

imperfections would not render a will invalid should it be proved

Same; Same; Defects in attestation clause which require

Same; Same; Same.—It may thus be stated that the rule, as

784 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

invalidation of the attestation clause and ultimat ely, of the will

PETITION for review on certiorari of the decision of the

The facts are stated in the opinion of the Court.

Presented for resolution by this Court in the present

hearing on August 20, 1979 but the same and subsequent

1 Original Record, 1-3.

VOL. 222, MAY 28, 1993 785

before 3his petition could finally be heard by the probate

special administrator on June 21, 1983. Thereafter, on

3 Original Record, 1-3, 7, 24, 32.

786 SUPREME COURT REPORTS ANNOTATED

On the other hand, one of the attesting witnesses,

not unduly influenced in any way in the execution of his

“x x x The self-serving testimony of the two witnesses of the

Undaunted by said judgment of the probate court,

VOL. 222, MAY 28, 1993 787

void for the reason that its attestation clause is fatally

“The question therefore is whether the attestation clause in

“To our thinking, this is sufficient compliance and no evidence

Petitioners moved for the reconsideration of said ruling

10 Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno

788 SUPREME COURT REPORTS ANNOTATED

Petitioners assert that respondent court has ruled upon

We find the present petition to be meritorious, as we

1. A will has been defined as a species of conveyance

“Art. 805. Every will, other than a holographic will, must be

In addition, the ordinary will must be acknowledged before

VOL. 222, MAY 28, 1993 789

Article 805 merely requires that, in such a case, the

15 Art. 806, Civil Code.

790 SUPREME COURT REPORTS ANNOTATED

of the fact that attended the execution of a particular will,

page thereof in the presence of the attesting witnesses; and

21 Leynez vs. Leynez, 68 Phil. 745 (1939).

VOL. 222, MAY 28, 1993 791