- CASE DIGEST -
Cruz v.
Villasor
G.R. No.
L-32213, November 26, 1973
FACTS: The probate of the last will and testament of the late Valente Z.
Cruz was opposed by petitioner Agapita on the ground of fraud, deceit,
misrepresentation and undue influence, and that it was not executed in
accordance with law. Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr.
One of the witnesses, Angel Tevel Jr. was also the notary before whom
the will was acknowledged. Despite the objection, the lower court admitted the
will to probate on the ground that there is substantial compliance with the
legal requirements of having at least 3 witnesses even if the notary public was
one of them.
ISSUE: Whether or not the probate of a will is valid
if one of the three instrumental witnessed is the notary public to whom the
will was acknowledged.
RULING:
NO. 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 acknowledging officer cannot serve as witness at the same time.
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 on the mandatory
requirement under Article 805, of 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.
To acknowledge before means to avow, or to own as genuine, to assent,
admit, and '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 participation in the making of the will. To permit
such situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal
or immoral arrangements, a function defeated if he were to be one of the
attesting or instrumental witnesses. He would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his
own act. It would be in an inconsistent position, defeating the very purpose of
the acknowledgment, which is to minimize fraud.
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