Case Digest: Cruz vs. Villasor, G.R. No. L-32213, November 16, 1973

 Art. 806  | Succession, Notary Public, Witness

Provision:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court.

Ponente:
Esguerra, J.,

Petitioner: Agapita Cruz

Respondents: Hon. Judge Guillermo P. Villasor and Manuel Lugay

Recit Version:

Agapita N. Cruz, the surviving spouse of the deceased Valente Z. Cruz, opposed the probate of his will. Of the three witnesses, one of them, the notary public Angel H. Teves, Jr., was also the one before whom the will was supposed to have been acknowledged.

The court held that the notary public could not act as both the attesting and acknowledging witness since he cannot acknowledge before himself having signed the will. Allowing the notary public to be the third witness would mean only two witnesses appeared before him, contrary to the legal requirement of having at least three credible witnesses.

Facts:

Valente Z. Cruz left a last will and testament before he died.

Manuel B. Lugay is the supposed executor of the will.

Agapita N. Cruz, the surviving spouse of the deceased, opposed the probate. She claimed the will was executed through fraud, deceit, misrepresentation, and undue influence. She argued that Valente was not fully informed of the content of the will, especially regarding the properties he was disposing of, and that the will wasn't executed in accordance with the law.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. 

Petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. 

CFI-Cebu: Admitted the will to probate.

Issue:

WoN the supposed last will and testament of Valente Z. Cruz was executed in accordance with law. NO

Held:

Private respondent-appellee, Manuel B. Lugay, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. 

Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement. That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud, would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon. But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 806 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. 

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz is declared not valid and hereby set aside.