11. Cruz v.

Villasor
Page 1 of 2
Republic of the Philippines Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
SUPREME COURT Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
Manila same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed by
FIRST DIVISION at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay,
G.R. No. L-32213 November 26, 1973
who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at
AGAPITA N. CRUZ, petitioner, least three attesting witnesses even if the notary public acted as one of them, bolstering
vs. up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of as follows:
First Instance of Cebu, and MANUEL B. LUGAY, respondents.
It is said that there are, practical reasons for upholding a will as against
Paul G. Gorrez for petitioner. the purely technical reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the testator's signature
Mario D. Ortiz for respondent Manuel B. Lugay. 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
ESGUERRA, J.: 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
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing before himself his having signed the will. To acknowledge before means to avow
the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own
Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the as genuine, to assent, to admit; and "before" means in front or preceding in space or
will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72;
and undue influence; that the said instrument was execute without the testator having Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's
been fully informed of the content thereof, particularly as to what properties he was New International Dictionary 2d. p. 245.) Consequently, if the third witness were the
disposing and that the supposed last will and testament was not executed in accordance notary public himself, he would have to avow assent, or admit his having signed the will
with law. Notwithstanding her objection, the Court allowed the probate of the said last will in front of himself. This cannot be done because he cannot split his personality into two
and testament Hence this appeal by certiorari which was given due course. 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.
The only question presented for determination, on which the decision of the case hinges,
is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was Furthermore, the function of a notary public is, among others, to guard against any illegal
executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated
the first requiring at least three credible witnesses to attest and subscribe to the will, and if the notary public were one of the attesting instrumental witnesses. For them he would
the second requiring the testator and the witnesses to acknowledge the will before a be interested sustaining the validity of the will as it directly involves him and the validity of
notary public. his own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107),
would be thwarted.
 11. Cruz v. Villasor
Page 2 of 2
Admittedly, there are American precedents holding that notary public may, in addition, alleged that the instrument was executed without the testator having been informed of its
act as a witness to the executive of the document he has notarized. (Mahilum v. Court contents and finally, that it was not executed in accordance with law.
Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless makes him a witness 2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; acknowledged. Despite the objection, the lower court admitted the will to probate on the
Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate ground that there is substantial compliance with the legal requirements of having at least
160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). 3 witnesses even if the notary public was one of them.
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 ISSUE: Whether or not the will is valid in accordance with Art. 805 and 806 of the
aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not NCC
as acknowledging witnesses. He the notary public acted not only as attesting witness but
also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code HELD: NO.
which reads: The will is not valid. The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the said will. An
ART. 806. Every will must be acknowledged before a notary public by the acknowledging officer cannot serve as witness at the same time.
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 acknowledge before means to avow, or to own as genuine, to assent, admit, and
[Emphasis supplied] 'before' means in front of or preceding in space or ahead of. The notary cannot split his
personality into two so that one will appear before the other to acknowledge his
To allow the notary public to act as third witness, or one the attesting and acknowledging participation int he making of the will. To permit such situation would be absurd.
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three Finally, the function of a notary among others is to guard against any illegal or immoral
credible witnesses to act as such and of Article 806 which requires that the testator and arrangements, a function defeated if he were to be one of the attesting or instrumental
the required number of witnesses must appear before the notary public to acknowledge witnesses. He would be interested in sustaining the validity of the will as it directly
the will. The result would be, as has been said, that only two witnesses appeared before involves himself and the validity of his own act. he would be in an inconsistent position,
the notary public for or that purpose. In the circumstances, the law would not be duly in thwarting the very purpose of the acknowledgment, which is to minimize fraud.
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 (Exhibit "E") is declared not valid
and hereby set aside.

Cost against the appellee.

CASE DIGEST

FACTS:
1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti
Cruz. However, the petitioner opposed the allowance of the will alleging that it was
executed through fraud, deceit, misrepresentation, and undue influence. He further