Case Digest: Taboada vs. Rosal, G.R. No. L-36033, November 5, 1982

Art. 805  | Succession, Subscription, Attestation

Provision:

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.

Ponente:
Gutierrez, Jr. J.

Petitioner: Apolonio Taboada

Respondent: Hon. Avelino S. Rosal

                Judge of the CFI-Southern Leyte

Recit Version:

The petitioner filed a petition to probate the will of Dorotea Perez but was rejected for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix and at the left hand margin by three instrumental witnesses. The probate court believed that all three subscribing witnesses needed to sign at the same place or at the end of the will for it to be valid, as per Article 805 of the Civil Code.

However, the Supreme Court, disagreed with the probate court's interpretation. They found that the attestation and subscription requirements were satisfied when the instrumental witnesses signed at the left margin of the sole page containing the testamentary dispositions.Moreover, they concluded that the failure to mention the number of pages was not fatal since the will was actually composed of only two pages, both signed by the testatrix and her witnesses.

Facts:

Dorotea Perez allegedly executed a last will and testament, written in the Cebuano-Visayan dialect, consisting of two pages. 

1. The first page contains the testamentary dispositions, signed at the end or bottom of the page by the testatrix and at the left hand margin by the three instrumental witnesses.
2. The second page contains the attestation clause and acknowledgment, signed at the end of the attestation clause by the three attesting witnesses, and at the left hand margin by the testatrix.

Apolonio Taboada filed a petition for probate of the will.

He presented Vicente Timkang, one of the subscribing witnesses to the will.

Judge Ramon C. Pamatian, denied the probate of the will for want of a formality in its execution. He was also asked to provide names and addresses of intestate heirs. The petitioner filed a motion for reconsideration but Judge Pamatian was transferred, and the motions remained pending.

Judge Avelino S. Rosal, assumed the position and denied the motion for reconsideration and the motion for the appointment of a special administrator, citing the petitioner's failure to submit the required names and addresses of intestate heirs. 

Judge Rosal interprets Article 805 of the New Civil Code 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.

Issue:

WoN 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 for the validity of a formal notarial will. NO

Held:

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. 

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.

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. 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."

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.

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."

The ratio decidendi seems to be that the attestation clause must contain a statement of the number of sheets or passes 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.