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  • Petitioner-Appellant vs. vs. Respondents-Appellees Ignacio A Calingin

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    Maureen Antallan
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    This document summarizes a Supreme Court case regarding the dismissal of a petition to probate a will due to the lack of a documentary stamp. The Court held that the lower court erred in dismissing the case solely for that reason, as the stamp could have been affixed later. The lower court should have allowed the petitioner to attach the stamp and decided the case on its merits. The Supreme Court reversed the dismissal and directed the lower court to do so.

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    137804-1980-Gabucan_v._Manta20190127-5466-16si588

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    This document summarizes a Supreme Court case regarding the dismissal of a petition to probate a will due to the lack of a documentary stamp. The Court held that the lower court erred in dismissing the case solely for that reason, as the stamp could have been affixed later. The lower court should have allowed the petitioner to attach the stamp and decided the case on its merits. The Supreme Court reversed the dismissal and directed the lower court to do so.

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    © All Rights Reserved
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    22 views2 pages

    Petitioner-Appellant vs. vs. Respondents-Appellees Ignacio A Calingin

    Uploaded by

    Maureen Antallan
    This document summarizes a Supreme Court case regarding the dismissal of a petition to probate a will due to the lack of a documentary stamp. The Court held that the lower court erred in dismissing the case solely for that reason, as the stamp could have been affixed later. The lower court should have allowed the petitioner to attach the stamp and decided the case on its merits. The Supreme Court reversed the dismissal and directed the lower court to do so.

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    © All Rights Reserved
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    of 2

    SECOND DIVISION

    [G.R. No. L-51546. January 28, 1980.]

    JOSE ANTONIO GABUCAN , petitioner-appellant, vs. HON. JUDGE LUIS


    D. MANTA, JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR ,
    respondents-appellees.

    Ignacio A. Calingin for appellant.

    DECISION

    AQUINO , J : p

    This case is about the dismissal of a petition for the probate of a notarial will on
    the ground that it does not bear a thirty-centavo documentary stamp.
    The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in
    Special Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan,
    dismissed the proceeding (erroneously characterizes as an "action"). cdasia

    The proceeding was dismissed because the requisite documentary stamp was
    not a xed to the notarial acknowledgment in the will and, hence, according to
    respondent Judge, it was not admissible in evidence, citing section 238 of the Tax
    Code, now section 250 of the 1977 Tax Code, which reads:
    "SEC. 238. Effect of failure to stamp taxable document. — An
    instrument, document, or paper which is required by law to be stamped and which
    has been signed, issued, accepted, or transferred without being duly stamped,
    shall not be recorded, nor shall it or any copy thereof or any record of transfer of
    the same be admitted or use in evidence in any court until the requisite stamp or
    stamps shall have been affixed thereto and cancelled.
    No notary public or other o cer authorized to administer oaths shall add
    his jurat or acknowledgment to any document subject to documentary stamp tax
    unless the proper documentary stamps are affixed thereto and cancelled."

    The probate court assumed that the notarial acknowledgment of the said will is
    subject to the thirty-centavo documentary stamp tax xed in section 225 of the Tax
    Code, now section 237 of the 1977 Tax Code.
    Respondent Judge refused to reconsider the dismissal in spite of petitioner's
    manifestation that he had already attached the documentary stamp to the original of
    the will, (See Mahilum vs. Court of Appeals, 64 3. G. 4017, 17 SCRA 482, 486.)
    The case was brought to this Court by means of a petition for mandamus to
    compel the lower court to allow petitioner's appeal from its decision. In this Court's
    resolution of January 21, 1980 the petition for mandamus was treated in the interest of
    substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a
    special civil action of certiorari under Rule 65 of the Rules of Court.
    We hold that the lower court manifestly erred in declaring that, because no
    CD Technologies Asia, Inc. © 2019 cdasiaonline.com
    documentary stamp was a xed to the will, there was "no will and testament to
    probate" and, consequently, the alleged "action must of necessity be dismissed."
    What the probate court should have done was to require the petitioner or
    proponent to a x the requisite thirty-centavo documentary stamp to the notarial
    acknowledgment of the will which is the taxable portion of that document.
    That procedure may be implied from the provision of section 238 that the non-
    admissibility of the document, which does not bear the requisite documentary stamp,
    subsists only "until the requisite stamp or stamps shall have been a xed thereto and
    cancelled." LibLex

    Thus, it was held that the documentary stamp may be a xed at the time the
    taxable document is presented in evidence (Del Castillo vs. Madrileña, 49 Phil. 749) If
    the promissory note does not bear a documentary stamp, the court should have
    allowed plaintiff's tender of a stamp to supply the de ciency. (Rodriguez vs. Martinez, 5
    Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the
    documentary stamp on a document does not invalidate such document. See Cia.
    General de Tabacos vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
    Amenabar, 16 Phil. 403, 405-6.)
    WHEREFORE, the lower court's dismissal of the petition for probate is reversed
    and set aside. It is directed to decide the case on the merits in the light of the parties'
    evidence. No costs.
    SO ORDERED.
    Barredo, Antonio, Concepcion, Jr. and Abad Santos, JJ ., concur.

    CD Technologies Asia, Inc. © 2019 cdasiaonline.com

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