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Lopez v. Lopez, G.R. No. 189984, November 12, 2012.

[PERLAS-BERNABE, J.]

FACTS

The RTC disallowed the probate of the will for failure to comply with the required statement in the attestation clause as to the number of pages used upon which the will is written. While the acknowledgment portion stated that the will consists of 7 pages including the page on which the ratification and acknowledgment are written, the RTC observed that it has 8 pages including the acknowledgment portion. As such, it disallowed the will for not having been executed and attested in accordance with law.

 

ISSUE

Whether or not the discrepancy between the number of pages in the attestation clause and the actual number of pages in the will that would warrant its disallowance.

 

RULING

YES. The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide that the attestation must state the number of pages used upon which the will is written. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages. Here, the will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde.

 

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Echavez v. Dozen Construction and Development Corporation, G.R. No. 192916, October 11, 2010.

[BRION, J.]

FACTS

Vicente Echavez (Vicente) was the absolute owner of the subject lots donated to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa, sans attestation clause, acknowledged before a notary public. Manuel accepted the donation. Vicente sold the same lots in favor of Dozen Construction and Development Corporation (Dozen Corporation). Manuel filed a petition to approve Vicente’s donation mortis causa in his favor and an action to annul the contracts of sale Vicente executed in favor of Dozen Corporation.

 

ISSUE

Whether or not the donation mortis causa is valid despite the non-conformity with the formalities of a will.

 

RULING

NO. A donation mortis causa must comply with the formalities prescribed by law for the validity of wills, “otherwise, the donation is void and would produce no effect.” Articles 805 and 806 of the Civil Code should have been applied. Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before the notary public, this is not the avowal the law requires from the instrumental witnesses to the execution of a decedent’s will.  Hence, the donation is void, while the sale to Dozen Construction is valid.

 

 

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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Taboada v. Rosal, G.R. No. L-36033, November 5, 1982.

[GUTIERREZ, JR., J.]

 

FACTS

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

 

ISSUE

Whether or not the will is void for failure to state the number of pages used in writing the will.

 

RULING

NO. 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. [T]he 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”.

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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Nera v. Rimando, G.R. No. L-5971, February 21, 1911.

[CARSON, J.]

FACTS

A notarial will was executed in a small room. At the moment when the witness Javellana signed the document, Jaboneta was outside, some eight or ten feet away but was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so.

 

ISSUE

Whether or not the notarial will is void for the failure of the instrumental witnesses to see each other sign.

 

RULING

NO. The phrase “in the presence” required by law simply means that position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. The question whether the testator and the subscribing witnesses to an alleged will sign the instrument “in the presence” of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign.

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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In the Matter of the Summary Settlement of Estate of Anacleta Abellana, Balonan v. Abellana, G.R. No. L-15153, August 31, 1960.

[LABRADOR, J.]

FACTS

The first page of the will is signed by Juan Bello and under his name appears typewritten “Por la testadora Anacleta Abellana…”, and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament.

 

ISSUE

Does the signature of another person above the name of the testator comply with the requirements of law prescribing the manner in which a will shall be executed?

 

RULING

NO. The 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 (Section 618 of the Code of Civil Procedure). Here, the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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In the Matter of the Will of Antero Mercado, Garcia v. Lacuesta, G.R. No. L-4067, November 29, 1951.

[PARAS, C.J.]

FACTS

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by “A reugo del testator” and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The attestation clause failed to state that the testator caused another person to write the testator’s name under his express direction. The herein petitioner argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.

 

ISSUE

Whether or not the will is void on the ground that it failed to state that the testator caused another person to write the testator’s name under his express direction.

 

RULING

YES. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator’s name under his express direction, as required by section 618 of the Code of Civil Procedure. It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, [the Court is] not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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Suroza v. Judge Honrado, A.M. 2026 CFI, December 19, 1981.

[AQUINO, J.]

FACTS

Mauro Suroza and Marcelina Salvador reared a boy named Agapito who used the surname Suroza. Mauro died and Marcelina became the beneficiary of Mauro’s pension. Years after, Agapito married Nenita. Marcelina executed a notarial will. That will which is in English was thumbmarked by her. Marcelina was illiterate. In that will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. In the opening paragraph of the will, it was stated that English was a language “understood and known” to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix “and translated into Filipino language”.

 

ISSUE

Whether or not a will written in another language which is a translation of the language known to the testator is void.

 

RULING

YES. That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and must be disallowed.

 
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Posted by on August 14, 2017 in Case Digests, Civil Law, Succession

 

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