TESTATE
ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE,
Petitioner,
-versus
G.R.
No. 147145
January
31, 2005
ALIPIO
ABAJA and NOEL ABELLAR,
Respondents. x--------------------------------------------------------------------------------------------x
D
E C I S I O N
CARPIO,
J.:
The Case
Before
the Court is a Petition for Review[1] assailing the Decision[2] of the
Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The
Court of Appeals sustained the Resolution[3] of the Regional Trial
Court of Kabankalan, Negros Occidental, Branch 61 (“RTC-Kabankalan”),
admitting to probate the last will and testament of Alipio Abada
(“Abada”).
The
Antecedent Facts
Abada
died sometime in May 1940.[4] His widow Paula Toray (“Toray”) died
sometime in September 1943. Both died without legitimate children.
On 13
September 1968, Alipio C. Abaja (“Alipio”) filed with the then Court of
First Instance of Negros Occidental (now RTC-Kabankalan) a petition,[5]
docketed as SP No. 070 (313-8668), for the probate of the last will and
testament (“will”) of Abada. Abada allegedly named as his
testamentary heirs his natural children Eulogio Abaja (“Eulogio”) and
Rosario Cordova. Alipio is the son of Eulogio.
Nicanor
Caponong (“Caponong”) opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that
the will, if Abada really executed it, should be disallowed for the
following reasons: (1) it was not executed and attested as
required by law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged intestate heirs of Abada,
namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and
Elena Abada (“Joel Abada, et al.”), and Levi, Leandro, Antonio,
Florian, Hernani and Carmela Tronco (“Levi Tronco, et al.”), also
opposed the petition. The oppositors are the nephews, nieces and
grandchildren of Abada and Toray.
On 13
September 1968, Alipio filed another petition[6] before the
RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the probate of
the last will and testament of Toray. Caponong, Joel Abada, et
al., and Levi Tronco, et al. opposed the petition on the same grounds
they cited in SP No. 070 (313-8668).
On 20
September 1968, Caponong filed a petition[7] before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of
letters of administration of the intestate estate of Abada and Toray.
In an
Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of Toray’s will became
final and executory.[8]
In an
order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble (“Caponong-Noble”) Special Administratrix of the estate
of Abada and Toray.[9] Caponong-Noble moved for the dismissal of the
petition for probate of the will of Abada. The RTC-Kabankalan
denied the motion in an Order dated 20 August 1991.[10]
Sometime
in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March 1992, former Presiding Judge
Edgardo Catilo had already submitted the case for decision. Thus,
the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been
sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law
directs and that the petitioner through his testimony and the
deposition of Felix Gallinero was able to establish the regularity of
the execution of the said Will and further, there being no evidence of
bad faith and fraud, or substitution of the said Will, the Last Will
and Testament of Alipio Abada dated June 4, 1932 is admitted and
allowed probate.
As
prayed for by counsel, Noel Abbellar[11] is appointed administrator of
the estate of Paula Toray who shall discharge his duties as such after
letters of administration shall have been issued in his favor and after
taking his oath and filing a bond in the amount of Ten Thousand
(P10,000.00) Pesos.
Mrs.
Belinda C. Noble, the present administratrix of the estate of Alipio
Abada shall continue discharging her duties as such until further
orders from this Court.
SO
ORDERED.[12]
The
RTC-Kabankalan ruled on the only issue raised by the oppositors in
their motions to dismiss the petition for probate, that is, whether the
will of Abada has an attestation clause as required by law. The
RTC-Kabankalan further held that the failure of the oppositors to raise
any other matter forecloses all other issues.
Not
satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a
Decision promulgated on 12 January 2001, the Court of Appeals affirmed
the Resolution of the RTC-Kabankalan. The appellate court found
that the RTC-Kabankalan properly admitted to probate the will of Abada.
Hence,
the present recourse by Caponong-Noble.
The
Issues
The
petition raises the following issues:
1. What
laws apply to the probate of the last will of Abada;
2.
Whether the will of Abada requires acknowledgment before a notary
public;[13]
3.
Whether the will must expressly state that it is written in a language
or dialect known to the testator;
4.
Whether the will of Abada has an attestation clause, and if so, whether
the attestation clause complies with the requirements of the applicable
laws;
5.
Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
6.
Whether evidence aliunde may be resorted to in the probate of the will
of Abada.
The
Ruling of the Court
The
Court of Appeals did not err in sustaining the RTC-Kabankalan in
admitting to probate the will of Abada.
The
Applicable Law
Abada
executed his will on 4 June 1932. The laws in force at that time
are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or
the Code of Civil Procedure[14] which governed the execution of wills
before the enactment of the New Civil Code.
The
matter in dispute in the present case is the attestation clause in the
will of Abada. Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645,[15] governs the form of the attestation clause
of Abada’s will.[16] Section 618 of the Code of Civil Procedure, as
amended, provides:
SEC. 618.
Requisites of will. – No will, except as provided in the preceding
section,[17] shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written in the language or
dialect known by the testator and signed by him, 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 each other. 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, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each
sheet. 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.
Requisites
of a Will under the Code of Civil Procedure
Under
Section 618 of the Code of Civil Procedure, the requisites of a will
are the following:
(1)
The will must be written in the language or dialect known by the
testator;
(2)
The will must be signed by the testator, or by the testator’s name
written by some other person in his presence, and by his express
direction;
(3)
The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4)
The testator or the person requested by him to write his name and the
instrumental witnesses of the will must sign each and every page of the
will on the left margin;
(5)
The pages of the will must be numbered correlatively in letters placed
on the upper part of each sheet;
(6)
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 of the will, or caused some other person to write
his name, under his express direction, in the presence of three
witnesses, and the witnesses witnessed and signed the will and all
pages of the will in the presence of the testator and of each other.
Caponong-Noble
asserts that the will of Abada does not indicate that it is written in
a language or dialect known to the testator. Further, she
maintains that the will is not acknowledged before a notary
public. She cites in particular Articles 804 and 805 of the Old
Civil Code, thus:
Art. 804.
Every will must be in writing and executed in [a] language or dialect
known to the testator.
Art.
806. Every will must be acknowledged before a notary public by
the testator and the witnesses. xxx[18]
Caponong-Noble
actually cited Articles 804 and 806 of the New Civil Code.[19] Article
804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the
Old Civil Code defines a legitime.
Articles
804 and 806 of the
New Civil Code
are new provisions. Article 804
of the
New Civil Code
is taken from Section 618 of the Code of Civil
Procedure.[20] Article 806 of the
New Civil Code
is taken from
Article 685 of the Old Civil Code[21] which provides:
Art. 685.
The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be
identified by two witnesses who are acquainted with him and are known
to the notary and to the attesting witnesses. The notary and the
witnesses shall also endeavor to assure themselves that the testator
has, in their judgment, the legal capacity required to make a will.
Witnesses
authenticating a will without the attendance of a notary, in cases
falling under Articles 700 and 701, are also required to know the
testator.
However,
the Code of Civil Procedure[22] repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure, the intervention of a
notary is not necessary in the execution of any will.[23] Therefore,
Abada’s will does not require acknowledgment before a notary public.
Caponong-Noble
points out that nowhere in the will can one discern that Abada knew the
Spanish language. She alleges that such defect is fatal and must
result in the disallowance of the will. On this issue, the Court
of Appeals held that the matter was not raised in the motion to
dismiss, and that it is now too late to raise the issue on
appeal. We agree with Caponong-Noble that the doctrine of
estoppel does not apply in probate proceedings.[24] In addition, the
language used in the will is part of the requisites under Section 618
of the Code of Civil Procedure and the Court deems it proper to pass
upon this issue.
Nevertheless,
Caponong-Noble’s contention must still fail. There is no
statutory requirement to state in the will itself that the testator
knew the language or dialect used in the will.[25] This is a matter
that a party may establish by proof aliunde.[26] Caponong-Noble further
argues that Alipio, in his testimony, has failed, among others, to show
that Abada knew or understood the contents of the will and the Spanish
language used in the will. However, Alipio testified that Abada
used to gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the Spanish
language.[27] This sufficiently proves that Abada speaks the Spanish
language.
The
Attestation Clause of Abada’s Will
A
scrutiny of Abada’s will shows that it has an attestation clause.
The attestation clause of Abada’s will reads:
Suscrito y
declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador
firmado en nuestra presencia en el margen izquierdo de todas y cada una
de las hojas del mismo. Y en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador al pie de
este documento y en el margen izquierdo de todas y cada una de las dos
hojas de que esta compuesto el mismo, las cuales estan paginadas
correlativamente con las letras “UNO” y “DOS’ en la parte superior de
la carrilla.[28]
Caponong-Noble
proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the
number of pages on which the will is written.
The
allegation has no merit. The phrase “en el margen izquierdo de
todas y cada una de las dos hojas de que esta compuesto el mismo” which
means “in the left margin of each and every one of the two pages
consisting of the same” shows that the will consists of two
pages. The pages are numbered correlatively with the letters
“ONE” and “TWO” as can be gleaned from the phrase “las cuales estan
paginadas correlativamente con las letras “UNO” y “DOS.”
Caponong-Noble
further alleges that the attestation clause fails to state expressly
that the testator signed the will and its every page in the presence of
three witnesses. She then faults the Court of Appeals for
applying to the present case the rule on substantial compliance found
in Article 809 of the New Civil Code.[29]
The
first sentence of the attestation clause reads: “Suscrito y declarado
por el testador Alipio Abada como su ultima voluntad y testamento en
presencia de nosotros, habiendo tambien el testador firmado en nuestra
presencia en el margen izquierdo de todas y cada una de las hojas del
mismo.” The English translation is: “Subscribed and professed by
the testator Alipio Abada as his last will and testament in our
presence, the testator having also signed it in our presence on the
left margin of each and every one of the pages of the
same.” The attestation clause clearly states that
Abada signed the will and its every page in the presence of the
witnesses.
However,
Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, the Court
agrees with the appellate court in applying the rule on substantial
compliance in determining the number of witnesses. While the
attestation clause does not state the number of witnesses, a close
inspection of the will shows that three witnesses signed it.
This
Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson vs. De
Gorostiza,[30] the Court recognized that there are two divergent
tendencies in the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the Court
noted that Abangan vs. Abangan,[31] the basic case on the liberal
construction, is cited with approval in later decisions of the Court.
In
Adeva vda. De Leynez vs. Leynez,[32] the petitioner, arguing for
liberal construction of applicable laws, enumerated a long line of
cases to support her argument while the respondent, contending that the
rule on strict construction should apply, also cited a long series of
cases to support his view. The Court, after examining the cases
invoked by the parties, held:
x x x It
is, of course, not possible to lay down a general rule, rigid and
inflexible, which would be applicable to all cases. More than
anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the
surrounding circumstances point to a regular execution of the will, and
the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in
the absence of any suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. x x x.
An
attestation clause is made for the purpose of preserving, in permanent
form, a record of the facts attending the execution of the will, so
that in case of failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. (Thompson on Wills, 2d ed.,
sec. 132.) A will, therefore, should not be rejected where its
attestation clause serves the purpose of the law. x x x [33]
We
rule to apply the liberal construction in the probate of Abada’s
will. Abada’s will clearly shows four signatures: that of Abada
and of three other persons. It is reasonable to conclude that
there are three witnesses to the will. The question on the number
of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidence aliunde. The Court
explained the extent and limits of the rule on liberal construction,
thus:
[T]he so-called
liberal rule 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 within 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.[34] (Emphasis supplied)
The
phrase “en presencia de nosotros” or “in our presence” coupled with the
signatures appearing on the will itself and after the attestation
clause could only mean that: (1) Abada subscribed to and
professed before the three witnesses that the document was his last
will, and (2) Abada signed the will and the left margin of each page of
the will in the presence of these three witnesses.
Finally,
Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the
will and all its pages in the presence of the testator and of each
other. This Court has ruled:
Precision of
language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of
the statute be made. It is sufficient if from the language
employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.[35]
The
last part of the attestation clause states “en testimonio de ello, cada
uno de nosotros lo firmamos en presencia de nosotros y del
testador.” In English, this means “in its witness, every one of
us also signed in our presence and of the testator.” This clearly
shows that the attesting witnesses witnessed the signing of the will of
the testator, and that each witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
SO
ORDERED.
Davide,
Jr., C.J., (Chairman),
Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.
[1]
Under Rule 45 of the 1997 Rules of Civil Procedure.
[2]
Penned by Associate Justice Presbitero J. Velasco, Jr. (now Court
Administrator) with Associate Justices Ruben T. Reyes and Juan Q.
Enriquez, Jr., concurring.
[3]
Penned by Presiding Judge Rodolfo S. Layumas.
[4]
Alipio C. Abaja tried to secure a copy of Abada’s death certificate but
the Local Civil Registrar of Cawayan, Negros Occidental informed him
that all the records of pre-war deaths were destroyed during the war.
[5] In
the matter of the Probate of the Last Will and Testament of the late
Alipio Abada.
[6] In
the matter of the Probate of the Last Will and Testament of the late
Paula Toray.
[7] In
the matter of the Intestate Estate of Spouses Alipio Abada and Paula
Toray. Petition for Letters of Administration.
[8]
Records, p. 38.
[9]
Ibid., p. 41.
[10]
Ibid., pp. 42-45.
[11]
It should be Abellar.
[12]
Rollo, p. 47.
[13]
Petitioner phrases this issue as to whether the will has to be
“notarized.” A notarized document includes one that is subscribed and
sworn under oath or one that contains a jurat. Acknowledgment is
different. Acknowledgment refers to an act in which an individual
on a single occasion: (a) appears in person before the notary public
and presents an integrally complete instrument or document; (b) is
attested to be personally known to the notary public or identified by
the notary public through competent evidence of identity as defined by
these Rules; and (c) represents to the notary public that the signature
on the instrument or document was voluntarily affixed by him for the
purposes stated in the instrument or document, declares that he has
executed the instrument or document as his free and voluntary act and
deed, and, if he acts in a particular representative capacity, that he
has the authority to sign in that capacity. (See Section 1, Rule
II of 2004 Rules of Notarial Practice)
[14]
The Code of Civil Procedure took effect on 1 September 1901.
[15]
An Act amending section six hundred and eighteen of Act Numbered One
hundred and ninety, entitled “An Act providing A Code of Procedure in
Civil Actions and Special Proceedings in the Philippine Islands,”
prescribing additional requirement in the execution of wills. It
took effect on 1 July 1916.
[16]
The validity of the execution of a will is governed by the statutes in
the force at the time of its execution (In re will of Riosa, 39 Phil.
23 [1918]). Article 795 of the New Civil Code provides: “The validity
of a will as to its form depends upon the observance of the law in
force at the time it is made.”
[17]
Section 617 governs wills executed by a Spaniard or a resident of the
Philippine Islands before Act No. 190 came into force on 1 September
1901.
[18]
Rollo, p. 151.
[19]
The New Civil Code took effect on 30 August 1950.
[20]
TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 67 Vol. III (1998).
[21]
Ibid., p. 101.
[22]
FISHER, THE CIVIL CODE OF SPAIN, 198 (1921).
[23]
Valera vs. Purugganan, 4 Phil. 719 (1905).
[24]
See Fernandez, et al. vs. Dimagiba, 128 Phil. 450 (1967).
[25]
Lopez vs. Liboro, 81 Phil 429 (1948).
[26]
Ibid.
[27]
TSN, 26 October 1989, p. 74.
[28]
Exhibit “A,” Folder.
[29]
Article 809 of the New Civil Code provides:
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.
[30]
57 Phil. 437 (1932).
[31]
40 Phil. 476 (1919).
[32]
68 Phil. 745 (1939).
[33]
Ibid.
[34]
Gil vs. Murciano, Resolution on the Motion for Reconsideration, dated
20 March 1953, 88 Phil. 260 (1951). See also Caneda vs.
Court of Appeals, G.R. No. 103554, 28 May 1993, 222 SCRA 781, where the
Court explained the extent and limits of Article 809 of the New Civil
Code.
[35]
Dichoso de Ticson vs. De Gorostiza, supra, see note 31.
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