JOSE ANTONIO GABUCAN VS. HON. JUDGE LUIS D. MANTA

G.R. No. 51546, January 28, 1980

JOSE ANTONIO GABUCAN VS. HON. JUDGE LUIS D. MANTA, JOSEFA G. VDA. DE YSALINA AND NELDA G. ENCLONAR

FACTS: 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 proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will and, hence, according to respondent Judge, it was not admissible in evidence. The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.

ISSUE: Whether the notarial will should be allowed for probate.

RULING: YES. We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed 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 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".