A.C. No. 9223 - Lorenzo-Nucum vs. Cabalan

Case Summary (A.C. No. 9223)

Key Dates and Procedural Posture

Trial court allowed probate of the will over petitioner’s objections. The case was taken to the Supreme Court by certiorari. The Supreme Court reviewed the trial court’s allowance of probate and reversed that judgment, declaring the probate invalid and ordering costs against the appellee.

Facts

Valente Z. Cruz executed a writing offered for probate as his last will and testament. The instrument bore three subscribing or instrumental witnesses: Deogracias T. Jamaoas, Jr.; Dr. Francisco Panares; and Atty. Angel H. Teves, Jr. Atty. Teves also served as the notary public before whom the will was acknowledged. Petitioner-appellant asserted that the will was procured by fraud, deceit, misrepresentation and undue influence; that the testator had not been fully informed of the contents or the disposition of his properties; and that the will was not executed in conformity with legal formalities required by the Civil Code. Despite these objections, the Court of First Instance admitted the will to probate; the Supreme Court was asked to review whether the instrument complied with Articles 805 and 806 of the New Civil Code.

Legal Issue

Whether the instrument was executed in accordance with Articles 805 and 806 of the New Civil Code—specifically, whether the notary public who notarized the will may validly serve simultaneously as one of the three required attesting witnesses so that the statutory requirement of at least three credible witnesses, who must attest and subscribe in the presence of the testator and of each other and appear before the notary to acknowledge the will, is satisfied.

Applicable Law

Article 805 (New Civil Code): requires that a will be attested and subscribed by at least three credible witnesses. Article 806 (New Civil Code): requires that every will be acknowledged before a notary public by the testator and the witnesses; the notary is not required to retain a copy or file another with the Clerk of Court. The statutory scheme contemplates distinct acts of attestation/subscription by witnesses and of public acknowledgment before a notary by the testator and the witnesses.

Parties’ Contentions

Petitioner’s contention: Atty. Teves, acting as both notary and one of the three instrumental witnesses, cannot be counted as the third attesting witness because he cannot acknowledge his signature “before” himself; accordingly, only two witnesses in fact appeared before the notary to acknowledge the will, violating Articles 805 and 806. Respondent (executor) argued there was substantial compliance with the requirement of three attesting witnesses even if the notary also signed as a witness, relying on authorities (including an American jurisprudence passage) suggesting practical reasons for upholding a will where one required witness signed in effect as certifying to the testator’s acknowledgment rather than merely attesting the instrument.

Court’s Analysis

The Court accepted petitioner’s argument and reversed. It emphasized the ordinary and legal meaning of “to acknowledge before” as to avow, own as genuine, assent to or admit the act in the presence of another. The phrase “before” connotes presence of another person; the notary cannot acknowledge his own signing in front of himself because he cannot split his person into two presences. Permitting the notary to act as one of the attesting witnesses and at the same time to be the notary before whom acknowledgment occurs would effectively reduce the number of witnesses who appeared to acknowledge the will to two, contravening Article 805’s requirement of at least three credible witnesses and Article 806’s requirement that the testator and the witnesses appear before the notary to acknowledge the will. The Court also grounded its ruling on the function of the notary public: to guard against illegal or immoral arrangements and to prevent fraud through independent authentication. If the notary is one of the attesting witnesses and is required to acknowledge the will, the notary would have an interest in validating the will that would impair his independence and defeat the protective purpose of the acknowledgment requirement.

Treatment of Foreign Authorities and Distinctions

The Court acknowledged American decisions that have allowed a notary to serve additionally as an attesting witness in some contexts, but it distinguished those authorities on the ground that, in many of them, the notary merely signed as an attesting/subscribing witness and did not occupy the dual role of both attesting witness and acknowledging officer. The Court found th

Case Syllabus (A.C. No. 9223)

Citation and Procedural Posture

Reported at 153 Phil. 315; 70 OG 1447 (February 25, 1974); First Division; G.R. No. L-32213; decision dated November 26, 1973.
This is a petition to review on certiorari challenging the judgment of the Court of First Instance of Cebu that allowed the probate of the last will and testament of the late Valente Z. Cruz (Exhibit "E").
The appeal (certiorari) was brought by petitioner-appellant Agapita N. Cruz, the surviving spouse of the deceased, after the trial court allowed probate despite her objections.
The judgment under review was rendered by Hon. Judge Guillermo P. Villazor, Presiding Judge of Branch I, Court of First Instance of Cebu; Manuel B. Lugay is the private respondent and the supposed executor of the will.
Decision authored by Justice Esguerra; Justices Makalintal, C.J., Ruiz Castro, Teehankee, Makasiar, and Munoz Palma concurred.

Facts

The instrument in question is the supposed last will and testament of Valente Z. Cruz, marked Exhibit "E".
Petitioner Agapita N. Cruz opposed probate, alleging the will was executed through fraud, deceit, misrepresentation, and undue influence.
Petitioner further alleged that the testator was not fully informed of the contents of the instrument, particularly as to which properties were being disposed of, and that the instrument was not executed in accordance with law.
The probate was nevertheless allowed by the Court of First Instance of Cebu.
The will bore three instrumental (attesting/subscribing) witnesses: Deogracias T. Jamaoas, Jr.; Dr. Francisco Panares; and Atty. Angel H. Teves, Jr.
Atty. Angel H. Teves, Jr. is at the same time the Notary Public before whom the will was purportedly acknowledged.

Issues Presented

The controlling and only question presented for determination: Was the supposed last will and testament of Valente Z. Cruz (Exhibit "E") executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code?
More precisely: Were the formal requisites of attestation and acknowledgment satisfied, given that one of the three instrumental witnesses was the Notary Public who purportedly both attested the will and acknowledged it?

Relevant Statutory Provisions (as cited)

Article 805 (as referred to in the opinion): Requires at least three credible witnesses to attest and subscribe to a will.
Article 806 (expressly quoted in the opinion): "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." [Underscoring in original source.]

Petitioner’s Contentions

The will was executed through fraud, deceit, misrepresentation, and undue influence.
The testator was not fully informed of the contents of the will, especially in relation to the properties being disposed of.
The will was not executed in accordance with law because the notary public who acknowledged the will was also one of the attesting witnesses, resulting in an impermissible failure to have three witnesses appear before the notary public.
The notary public cannot properly be counted as one of the three attesting witnesses because he cannot acknowledge before himself the having signed the will.

Respondent’s Contentions (Private Respondent / Appellee Manuel B. Lugay)

Following the reasoning of the trial court, respondent maintained there was substantial compliance with the legal requirement of having at least three attesting witnesses even though the notary public acted as one of them.
Respondent relied on authorities, including 57 American Jurisprudence, p. 227, which recognizes practical reasons for upholding a will despite technical irregularity where one of the witnesses signed certifying to an acknowledgment rather than strictly attesting the execution.
Respondent pointed to American precedents that, in certain circumstances, allowed a notary public to act as a subscribing/attesting witness to the ex