Gabucan vs. Manta

A notarial will is not void, and a probate petition should not be dismissed, for lack of a documentary stamp on its acknowledgment; the probate court must allow the proponent to affix the stamp, whereupon the will becomes admissible in evidence. The condition of inadmissibility under the Tax Code is temporary and ceases upon affixation and cancellation of the required stamp.

Jose Antonio Gabucan initiated Special Proceeding No. 41 in the Court of First Instance of Camiguin to probate the notarial will of the late Rogaciano Gabucan. The original will had been executed and notarized, but no thirty-centavo documentary stamp had been placed on the notarial acknowledgment, the portion of the document subject to the documentary stamp tax.

• Nature: Jose Antonio Gabucan sought judicial probate of the notarial will of Rogaciano Gabucan before the Court of First Instance of Camiguin, docketed as Special Proceeding No. 41.
• The Defect: The notarial acknowledgment contained in the will did not bear the thirty-centavo documentary stamp prescribed by the Tax Code for such acknowledgments.
• Probate Court’s Action: On December 28, 1977, the probate court dismissed the proceeding, ruling that because the will lacked the requisite stamp, it could not be admitted in evidence under Section 238 of the Tax Code (now Section 250, 1977 Tax Code). The court concluded that there was “no will and testament to probate” and that the action “must of necessity be dismissed.”
• Attempted Correction: Petitioner manifested that he had already affixed the thirty-centavo documentary stamp to the original will and sought reconsideration. Respondent Judge refused to reconsider the dismissal.
• Ruling Quoted: Respondent Judge relied on Section 238 of the Tax Code, which states that an unstamped document shall not be recorded or admitted in evidence in any court “until the requisite stamp or stamps shall have been affixed thereto and cancelled.”

• Correctability of the Defect: Petitioner argued that the absence of a documentary stamp on the notarial acknowledgment did not invalidate the will and that the deficiency could be cured by affixing the stamp even during the proceedings. He pointed out that he had already attached the stamp to the original will.
• Right to Appeal: Petitioner sought mandamus to compel the probate court to allow an appeal from the order of dismissal, asserting that the dismissal was contrary to law.

• Inadmissibility of Unstamped Will: The respondent Judge ruled that because the will lacked the requisite documentary stamp, it was not admissible in evidence and, consequently, there was no valid will to probate, warranting dismissal of the proceeding. The Judge invoked Section 238 of the Tax Code as the basis for non-admissibility.

• Dismissal for Lack of Documentary Stamp: Whether a probate court may dismiss a petition for probate of a notarial will solely because the notarial acknowledgment lacks the required documentary stamp.

• Dismissal for Lack of Documentary Stamp: The dismissal was reversed and set aside as manifestly erroneous. Section 238 of the Tax Code expressly provides that the non-admissibility of an unstamped document subsists only “until the requisite stamp or stamps shall have been affixed thereto and cancelled.” The proper course was for the probate court to require the proponent to affix the thirty-centavo stamp to the notarial acknowledgment, the taxable portion of the document, rather than to declare that there was no will to probate. Longstanding precedents establish that a documentary stamp may be affixed at the time the document is presented in evidence and that the lack of a stamp does not invalidate the underlying document.

• Del Castillo v. Madrilena Doctrine, 49 Phil. 749 — A documentary stamp may be affixed at the time the taxable document is presented in evidence. The court should allow the party to supply the deficiency rather than exclude the document outright.
• Rodriguez v. Martinez Doctrine, 5 Phil. 67 — When a promissory note or similar taxable document lacks a documentary stamp, the court should allow the party to tender a stamp to cure the deficiency.
• Azarraga v. Rodriguez Doctrine, 9 Phil. 637 — The absence of a documentary stamp on a document does not invalidate the document itself; the stamp requirement is a fiscal measure, not a condition of validity.

• “What the probate court should have done was to require the petitioner or proponent to affix 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 affixed thereto and cancelled.’”

• Del Castillo vs. Madrilena, 49 Phil. 749 — Followed; held that a documentary stamp may be affixed at the time the taxable document is presented in evidence.
• Rodriguez vs. Martinez, 5 Phil. 67 — Followed; held that if a promissory note lacks a documentary stamp, the court should allow plaintiff’s tender of a stamp to supply the deficiency.
• Azarraga vs. Rodriguez, 9 Phil. 637 — Followed; held that lack of a documentary stamp does not invalidate the document.
• Cia. General de Tabacos vs. Jeanjaquet, 12 Phil. 195 — Noted.
• Delgado and Figueroa vs. Amenabar, 16 Phil. 403 — Noted.

• Section 238, Tax Code (now Section 250, 1977 Tax Code) — Provides that an instrument required to be stamped which has been signed without being duly stamped shall not be recorded or admitted in evidence “until the requisite stamp or stamps shall have been affixed thereto and cancelled.” The statute itself contemplates a temporary, curable defect. Applied to require the probate court to allow affixation of the missing stamp on the notarial acknowledgment.
• Section 225, Tax Code (now Section 237, 1977 Tax Code) — Imposes the thirty-centavo documentary stamp tax on notarial acknowledgments, the provision under which the acknowledgment portion of the will was taxable.

Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ., concurred.