Cruz v. Villasor
54 SCRA 752
FACTS:
The CFI of Cebu allowed the probate of Valente Z. Cruz’s last will and testament. His surviving spouse, Agapita Cruz, opposed the allowance of the will alleging it was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Agapita appealed the allowance of the will by certiorari.
ISSUE:
W/N the will was executed in accordance with law (particularly Articles 805 and 806 of the NCC, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.).
HELD:
NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at the same time the Notary Public before whom the will was supposed to have been acknowledged. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as genuine, to assent, to admit; and “before” means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he 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 a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement (Balinon v. De Leon). That function would defeated if the notary public were one of the attesting instrumental witnesses. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud, would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon. 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 in these cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. Here, the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805-06. Probate of will set aside.
