Professional Documents
Culture Documents
affixed on another part of same sheet, would alleged the records do not show that the
Page
testarix knew the dialect in which the will is
written. But the circumstance appearing in the
will itself that same was executed in the city of
Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to
presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
2
Page
G.R. No. L-18979 June 30, 1964 order, the oppositors appealed directly to this
IN THE MATTER OF THE TESTATE ESTATE Court, the amount involved being over
OF THE LATE JOSEFA VILLACORTE. P200,000.00, on the ground that the same is
CELSO ICASIANO, petitioner-appellee, contrary to law and the evidence.
vs. The evidence presented for the petitioner is to
NATIVIDAD ICASIANO and ENRIQUE the effect that Josefa Villacorte died in the City
ICASIANO, oppositors-appellants. of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a
REYES, J.B.L., J.: last will and testament in duplicate at the house
Appeal from an order of the Court of First of her daughter Mrs. Felisa Icasiano at Pedro
Instance of Manila admitting to probate the Guevara Street, Manila, published before and
document and its duplicate, marked as Exhibits attested by three instrumental witnesses,
"A" and "A-1", as the true last will and namely: attorneys Justo P. Torres, Jr. and Jose
testament of Josefa Villacorte, deceased, and V. Natividad, and Mr. Vinicio B. Diy; that the
appointing as executor Celso Icasiano, the will was acknowledged by the testatrix and by
person named therein as such. the said three instrumental witnesses on the
This special proceeding was begun on October same date before attorney Jose Oyengco Ong,
2, 1958 by a petition for the allowance and Notary Public in and for the City of Manila; and
admission to probate of the original, Exhibit "A" that the will was actually prepared by attorney
as the alleged will of Josefa Villacorte, Fermin Samson, who was also present during
deceased, and for the appointment of petitioner the execution and signing of the decedent's
Celso Icasiano as executor thereof. last will and testament, together with former
The court set the proving of the alleged will for Governor Emilio Rustia of Bulacan, Judge
November 8, 1958, and caused notice thereof Ramon Icasiano and a little girl. Of the said
to be published for three (3) successive weeks, three instrumental witnesses to the execution
previous to the time appointed, in the of the decedent's last will and testament,
newspaper "Manila chronicle", and also caused attorneys Torres and Natividad were in the
personal service of copies thereof upon the Philippines at the time of the hearing, and both
known heirs. testified as to the due execution and
On October 31, 1958, Natividad Icasiano, a authenticity of the said will. So did the Notary
daughter of the testatrix, filed her opposition; Public before whom the will was acknowledged
and on November 10, 1958, she petitioned to by the testatrix and attesting witnesses, and
have herself appointed as a special also attorneys Fermin Samson, who actually
administrator, to which proponent objected. prepared the document. The latter also testified
Hence, on November 18, 1958, the court upon cross examination that he prepared one
issued an order appointing the Philippine Trust original and two copies of Josefa Villacorte last
Company as special administrator.1äwphï1.ñët will and testament at his house in Baliuag,
On February 18, 1959, Enrique Icasiano, a son Bulacan, but he brought only one original and
of the testatrix, also filed a manifestation one signed copy to Manila, retaining one
adopting as his own Natividad's opposition to unsigned copy in Bulacan.
the probate of the alleged will. The records show that the original of the will,
On March 19, 1959, the petitioner proponent which was surrendered simultaneously with the
commenced the introduction of his evidence; filing of the petition and marked as Exhibit "A"
but on June 1, 1959, he filed a motion for the consists of five pages, and while signed at the
admission of an amended and supplemental end and in every page, it does not contain the
petition, alleging that the decedent left a will signature of one of the attesting witnesses,
executed in duplicate with all the legal Atty. Jose V. Natividad, on page three (3)
requirements, and that he was, on that date, thereof; but the duplicate copy attached to the
submitting the signed duplicate (Exhibit "A-1"), amended and supplemental petition and
which he allegedly found only on or about May marked as Exhibit "A-1" is signed by the
26, 1959. On June 17, 1959, oppositors testatrix and her three attesting witnesses in
Natividad Icasiano de Gomez and Enrique each and every page.
Icasiano filed their joint opposition to the The testimony presented by the proponents of
admission of the amended and supplemental the will tends to show that the original of the
petition, but by order of July 20, 1959, the court will and its duplicate were subscribed at the
admitted said petition, and on July 30, 1959, end and on the left margin of each and every
oppositor Natividad Icasiano filed her amended page thereof by the testatrix herself and
opposition. Thereafter, the parties presented attested and subscribed by the three
their respective evidence, and after several mentioned witnesses in the testatrix's presence
hearings the court issued the order admitting and in that of one another as witnesses (except
3
the will and its duplicate to probate. From this for the missing signature of attorney Natividad
Page
on page three (3) of the original); that pages of had which wrote the signatures in the original
the original and duplicate of said will were duly will leaves us unconvinced, not merely
numbered; that the attestation clause thereof because it is directly contradicted by expert
contains all the facts required by law to be Martin Ramos for the proponents, but
recited therein and is signed by the aforesaid principally because of the paucity of the
attesting witnesses; that the will is written in the standards used by him to support the
language known to and spoken by the testatrix conclusion that the differences between the
that the attestation clause is in a language also standard and questioned signatures are
known to and spoken by the witnesses; that beyond the writer's range of normal scriptural
the will was executed on one single occasion in variation. The expert has, in fact, used as
duplicate copies; and that both the original and standards only three other signatures of the
the duplicate copies were duly acknowledged testatrix besides those affixed to the original of
before Notary Public Jose Oyengco of Manila the testament (Exh. A); and we feel that with so
on the same date June 2, 1956. few standards the expert's opinion and the
Witness Natividad who testified on his failure to signatures in the duplicate could not be those
sign page three (3) of the original, admits that of the testatrix becomes extremely hazardous.
he may have lifted two pages instead of one This is particularly so since the comparison
when he signed the same, but affirmed that charts Nos. 3 and 4 fail to show convincingly
page three (3) was signed in his presence. that the are radical differences that would
Oppositors-appellants in turn introduced expert justify the charge of forgery, taking into account
testimony to the effect that the signatures of the advanced age of the testatrix, the evident
the testatrix in the duplicate (Exhibit "A-1") are variability of her signatures, and the effect of
not genuine nor were they written or affixed on writing fatigue, the duplicate being signed right
the same occasion as the original, and further the original. These, factors were not discussed
aver that granting that the documents were by the expert.
genuine, they were executed through mistake Similarly, the alleged slight variance in
and with undue influence and pressure blueness of the ink in the admitted and
because the testatrix was deceived into questioned signatures does not appear
adopting as her last will and testament the reliable, considering the standard and
wishes of those who will stand to benefit from challenged writings were affixed to different
the provisions of the will, as may be inferred kinds of paper, with different surfaces and
from the facts and circumstances surrounding reflecting power. On the whole, therefore, we
the execution of the will and the provisions and do not find the testimony of the oppositor's
dispositions thereof, whereby proponents- expert sufficient to overcome that of the notary
appellees stand to profit from properties held and the two instrumental witnesses, Torres and
by them as attorneys-in-fact of the deceased Natividad (Dr. Diy being in the United States
and not enumerated or mentioned therein, during the trial, did not testify).
while oppositors-appellants are enjoined not to Nor do we find adequate evidence of fraud or
look for other properties not mentioned in the undue influence. The fact that some heirs are
will, and not to oppose the probate of it, on more favored than others is proof of neither
penalty of forfeiting their share in the portion of (see In re Butalid, 10 Phil. 27; Bugnao vs.
free disposal. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
We have examined the record and are Phil. 216). Diversity of apportionment is the
satisfied, as the trial court was, that the usual reason for making a testament;
testatrix signed both original and duplicate otherwise, the decedent might as well die
copies (Exhibits "A" and "A-1", respectively) of intestate. The testamentary dispositions that
the will spontaneously, on the same in the the heirs should not inquire into other property
presence of the three attesting witnesses, the and that they should respect the distribution
notary public who acknowledged the will; and made in the will, under penalty of forfeiture of
Atty. Samson, who actually prepared the their shares in the free part do not suffice to
documents; that the will and its duplicate were prove fraud or undue influence. They appear
executed in Tagalog, a language known to and motivated by the desire to prevent prolonged
spoken by both the testator and the witnesses, litigation which, as shown by ordinary
and read to and by the testatrix and Atty. experience, often results in a sizeable portion
Fermin Samson, together before they were of the estate being diverted into the hands of
actually signed; that the attestation clause is non-heirs and speculators. Whether these
also in a language known to and spoken by the clauses are valid or not is a matter to be
testatrix and the witnesses. The opinion of litigated on another occassion. It is also well to
expert for oppositors, Mr. Felipe Logan, that note that, as remarked by the Court of Appeals
the signatures of the testatrix appearing in the in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
4
duplicate original were not written by the same and undue influence are mutually repugnant
Page
and exclude each other; their joining as original because it lacked one signature in its
grounds for opposing probate shows absence third page, it is easily discerned that
of definite evidence against the validity of the oppositors-appellants run here into a dilemma;
will. if the original is defective and invalid, then in
On the question of law, we hold that the law there is no other will but the duly signed
inadvertent failure of one witness to affix his carbon duplicate (Exh. A-1), and the same is
signature to one page of a testament, due to probatable. If the original is valid and can be
the simultaneous lifting of two pages in the probated, then the objection to the signed
course of signing, is not per se sufficient to duplicate need not be considered, being
justify denial of probate. Impossibility of superfluous and irrelevant. At any rate, said
substitution of this page is assured not only the duplicate, Exhibit A-1, serves to prove that the
fact that the testatrix and two other witnesses omission of one signature in the third page of
did sign the defective page, but also by its the original testament was inadvertent and not
bearing the coincident imprint of the seal of the intentional.
notary public before whom the testament was That the carbon duplicate, Exhibit A-1, was
ratified by testatrix and all three witnesses. The produced and admitted without a new
law should not be so strictly and literally publication does not affect the jurisdiction of
interpreted as to penalize the testatrix on the probate court, already conferred by the
account of the inadvertence of a single witness original publication of the petition for probate.
over whose conduct she had no control, where The amended petition did not substantially alter
the purpose of the law to guarantee the identity the one first filed, but merely supplemented it
of the testament and its component pages is by disclosing the existence of the duplicate,
sufficiently attained, no intentional or deliberate and no showing is made that new interests
deviation existed, and the evidence on record were involved (the contents of Exhibit A and A-
attests to the full observance of the statutory 1 are admittedly identical); and appellants were
requisites. Otherwise, as stated in Vda. de Gil. duly notified of the proposed amendment. It is
vs. Murciano, 49 Off. Gaz. 1459, at 1479 nowhere proved or claimed that the
(decision on reconsideration) "witnesses may amendment deprived the appellants of any
sabotage the will by muddling or bungling it or substantial right, and we see no error in
the attestation clause". admitting the amended petition.
That the failure of witness Natividad to sign IN VIEW OF THE FOREGOING, the decision
page three (3) was entirely through pure appealed from is affirmed, with costs against
oversight is shown by his own testimony as appellants.
well as by the duplicate copy of the will, which
bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public
likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court
departs from a strict and literal application of
the statutory requirements, where the purposes
of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court
has held that a testament, with the only page
signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476);
and that despite the requirement for the
correlative lettering of the pages of a will, the
failure to make the first page either by letters or
numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal
requirements in order to guard against fraud
and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the
original of the will is in existence and available,
the duplicate (Exh. A-1) is not entitled to
5
to overcome the uncontradicted testimony of all presence of each other. That is all the statute
Page
requires. It may be wise as a practical matter All of the above cases are precisely of this
that the one who signs the testator's name character. Every one of them was a case in
signs also his own; but that it is not essential to which the person who signed the will for the
the validity of the will. Whether one parson or testator wrote his own name to the will instead
another signed the name of the testatrix in this of writing that of the testator, so that the
case is absolutely unimportant so far as the testator's name nowhere appeared attached to
validity of her will is concerned. The plain the will as the one who executed it. The case
wording of the statute shows that the of Ex parte Arcenas contains the following
requirement laid down by the trial court, if it did paragraph:
lay down, is absolutely unnecessary under the Where a testator does not know, or is
law; and the reasons underlying the provisions unable for any reason, to sign the will
of the statute relating to the execution of wills himself, it shall be signed in the
do not in any sense require such a provision. following manner: "John Doe, by the
From the standpoint of language it is an testator, Richard Roe;" or in this form:
impossibility to draw from the words of the law "By the testator. John Doe, Richard
the inference that the persons who signs the Roe." All this must be written by the
name of the testator must sign his own name witness signing at the request of the
also. The law requires only three witnesses to testator.
a will, not four. The only question for decision in that case, as
Nor is such requirement found in any other we have before stated, was presented by the
branch of the law. The name of a person who fact that the person who was authorized to sign
is unable to write may be signed by another by the name of the testator to the will actually
express direction to any instrument known to failed to sign such name but instead signed his
the law. There is no necessity whatever, so far own thereto. The decision in that case related
as the validity of the instrument is concerned, only to that question.
for the person who writes the name of the Aside from the presentation of an alleged
principal in the document to sign his own name subsequent will the contestants in this case
also. As a matter of policy it may be wise that have set forth no reason whatever why the will
he do so inasmuch as it would give such involved in the present litigation should not be
intimation as would enable a person proving probated. The due and legal execution of the
the document to demonstrate more readily the will by the testatrix is clearly established by the
execution by the principal. But as a matter of proofs in this case. Upon the facts, therefore,
essential validity of the document, it is the will must be probated. As to the defense of
unnecessary. The main thing to be established a subsequent will, that is resolved in case No.
in the execution of the will is the signature of 6284 of which we have already spoken. We
the testator. If that signature is proved, whether there held that said later will not the will of the
it be written by himself or by another at his deceased.
request, it is none the less valid, and the fact of The judgment of the probate court must be and
such signature can be proved as perfectly and is hereby reversed and that court is directed to
as completely when the person signing for the enter an order in the usual form probating the
principal omits to sign his own name as it can will involved in this litigation and to proceed
when he actually signs. To hold a will invalid with such probate in accordance with law.
for the lack of the signature of the person Arellano, C.J., Mapa and Carson, JJ., concur.
signing the name of the principal is, in the
particular case, a complete abrogation of the
law of wills, as it rejects and destroys a will Separate Opinions
which the statute expressly declares is valid. TORRES, J., concurring:
There have been cited three cases which it is The undersigned agrees and admits that
alleged are in opposition to the doctrine which section 618 of the Code of Civil Procedure
we have herein laid down. They are Ex does not expressly require that, when the
parte Santiago (4 Phil. Rep., 692), Ex testator or testatrix is unable or does not know
parte Arcenas (4 Phil. Rep., 700), and how to sign, the person who, in the presence
Guison vs.Concepcion (5 Phil. Rep., 551). Not and under the express direction of either of
one of these cases is in point. The headnote in them, writes in the name of the said testator or
the case last above stated gives an indication testatrix must also sign his own name thereto,
of what all of cases are and the question it being sufficient for the validity of the will that
involved in each one of them. It says: the said person so requested to sign the
The testatrix was not able to sign it for testator or testatrix write the name of either in
her. Instead of writing her name he his own handwriting.
wrote his own upon the will.Held, That Since this court began to decide cases with
7
the will was not duly executed. regard to the form, conditions and validity of
Page
wills executed in accordance with the The following syllabus precedes decision No.
provisions of the Code of Civil Procedure, 3907:4
never has the specific point just above Execution of wills. — Where it appears
mentioned been brought into question. Now for in a will that the testator has stated that
the first time is affirmed in the majority opinion, by reason of his inability to sign his
written by the learned and distinguished Hon. name he requested one of the three
Justice Moreland, that, not being required by witnesses present to do so, and that as
the said code, the signature of the name of the a matter of fact, the said witness wrote
person who, at the request of the testator or the name and surname of the testator
testatrix, writes the name of either of the latter who, stating that the instrument
to the will executed, is not necessary. executed by him contained his last will,
Various and considerable in number have been put the sign of the cross between his
the decisions rendered by this court in which, said name and surname, all of which
as will be seen further on, upon applying the details are set forth in a note which the
said section 618 of Code of Civil Procedure witnesses forthwith subscribed in the
and requiring its observance in cases where presence of the testator and of each
the testator or testatrix is unable or does not other, said will may be probated.
know how to sign his or her name, expressly When the essential requisites of section
prescribed the practical method of complying 618 of the Code of Civil Procedure for
with the provisions of the law on the subject. the execution and validity of a will have
Among these decisions several were written by been complied with, the fact that the
various justices of this court, some of whom witness who was requested to sign the
are no longer on this bench, as they have name of the testator, omitted to state the
ceased to hold such position. words 'by request of .......... the testator,'
Paragraph 2 of the syllabus of case No. when writing with his own hand the
2002, Ex parte Delfin Santiago,1 concerning name and surname of the said testator,
the probate of a will, reads as follows: and the fact that said witness
Wills, authentication of . — Where a will subscribed his name together with the
is not signed by a testator but by some other witnesses and not below the name
other person in his presence and by his of the testator, does not constitute a
direction, such other person should affix defect nor invalidate the said will.
the name of the testator thereto, and it is The following statement appears in the
not sufficient that he sign his own name syllabus of case No. 4132, in the matter of the
for and instead of the name of the will of Maria Siason:5
testator. The recital of the name of the testator as
Paragraph 1 of the syllabus of case No. written below the will at his request
1708, Ex parte Arcenas,2 in the matter of the serves as a signature by a third person.
probate of a will, states: Moreover among the grounds given as a basis
1. Wills, requisites of; Civil Code, article for this same decision, the following appears:
repealed. — Article 695 of the Civil In sustaining this form of signature, this
Procedure; consequently where a court does not intend to qualify the
testator is unable to sign his name, the decisions in Ex parte Santiago (4 Phil.
person signing at his request must write Rep., 692), Ex parte Arcenas, above
at the bottom of the will the full name of quoted, or in Abaya vs. Zalamero. In the
the testator in the latter's presence, and Arcenas case the court pointed out the
by his express direction, and then sign correct formula for a signature which
his own name in full. ought to be followed, but did not mean
In the syllabus of decision No. 2586, Tomas to exclude any other for substantially
Guison vs. Maria Concepcion,3 the following equivalent.
statements appear: In the syllabus of decision No. 4454,6 Ex
Wills; inability to sign; signature by parte Ondevilla et al., the following appears:
another. — The testatrix was not able to The testatrix was unable to sign her will
sign her name to the will, and she with her own hand and requested
requested another person to sign it for another person to sign for her in her
her. Held, That the will was not duly presence. This the latter did, first writing
executed. (Following Ex parte Arcenas the name of the testatrix and signing his
et al., No. 1708, August 24, 1905; Ex own name below:Held, That the
parte Arcenas et al., No. 1708, August signature of the testatrix so affixed is
24, 1905; Ex parte Santiago, No. 2002, sufficient and a will thus executed is
August 18, 1905.) admissible to probate. (Ex
8
hereinabove quoted that the name and vogue under the former laws that governed in
Page
these Islands, with respect to witnesses who formed of the existing laws in the matter of
were not able or did not know how to sign their procedure in compliance therewith as regards
testimony given in criminal or civil cases, in the execution and signing of a will, should have
which event any person at all might write the believed that, after the name and surname of
name and surname of the witness who was the testator or testatrix had been written at the
unable or did not know how to sign, at the foot foot of the will, the person who signed the
of his deposition, where a cross was then instrument in the manner mentioned should
drawn, and, this done, it was considered that likewise sign the same with his own name and
the instrument had been signed by the witness, surname.
though it is true that all these formalities were If in various decisions it has been indicated that
performed before the judge and the clerk or the person who, under the express direction of
secretary of the court, which thereupon the testator or testatrix, wrote the latter's or the
certified that such procedure was had in former's name and surname, should also sign
accordance with the law. the will with his own name and surname, and
The difference is that in the will, pursuant to since this suggestion is not opposed or
section 618 of the Code of Civil Procedure, the contrary to the law, the undersigned is of
person who writes the name and surname of opinion that it ought not to be modified or
the testator or testatrix does so by the order amended, but that, on the contrary, it should be
and express direction of the one or of the maintained as a requisite established by the
other, and this fact must be recorded in the will; jurisprudence of this court, inasmuch as such a
but in the matter of the signature of a requisite is not contrary to law, to public order,
deposition, the witness, who could not or did or to good custom, is in consonance with a
not know how to sign, did not need to tradition of this country, does not prejudice the
designate anyone to write the deponent's name testator nor those interested in an inheritance,
and surname, and in practice the witness and, on the contrary, constitutes another
merely made a cross beside his name and guarantee of the truth and authenticity of the
surname, written by whomever it be. letters with which the name and surname of the
With regard to the execution of wills in testator of testatrix are written, in accordance
accordance with the provisions of previous with his or her desire as expressed in the will.
statutes, among them those of the Civil Code, Even though the requisites referred to were not
the person or witness requested by the testator recognized in jurisprudence and were
or testatrix who was not able or did not know unsupported by any legal doctrine whatever,
how to sign, authenticated the will by signing it yet, since it is in harmony with the juridical
with his own name and surname, preceded by usages and customs observed in this country,
the words "at the request of the testator or it ought, in the humble opinion of the writer, to
testatrix." Paragraph 2 of article 695 of the Civil be maintained for the benefit of the inhabitants
Code contains the following provisions bearing of the Islands and for the sake of a good
on the subject: administration of justice, because it is not a
Should the testator declare that he does question of a dangerous innovation or of one
not know how, or is not able to sign, one prejudicial to the public good, but a matter of
of the attesting witnesses or another the observance of a convenient, if not a
person shall do so for him at his necessary detail, introduced by the
request, the notary certifying thereto. jurisprudence of the courts and which in the
This shall be done if any one of the present case has filed a vacancy left by the
witnesses can not sign. positive written law.
So that, prior to the enforcement in this country The foregoing considerations, which perhaps
in 1901 of the Code of Civil procedure have not the support of better premises, but in
prescribed by the old laws with respect to the the opinion of the undersigned, are conducive
signing of a will by a testator or testatrix who to the realization of the purposes of justice,
did not know how or who could not sign, have impelled him to believe that the
consisted in that the person appointed and proposition should be enforced that the witness
requested by the testator or testatrix to sign in requested or invited by the testator or testatrix
his or her stead, such fact being recorded in to write his or her name to the will, should also
the will, merely affixed at the bottom of the will subscribed the instrument by signing thereto
and after the words "at the request of the his own name and surname; and therefore,
testator," his own name, surname and with the proper finding in this sense, and
paragraph. reversal of the judgment appealed from, that
It is not at all strange that the attorneys of this the court below should be ordered to proceed
country, imbued with and inspired by these with the probate of the will of the decedent,
10
legal provisions, which it may said, are Maria Salomon, in accordance with the law.
traditional to them in the ideas they have
Page
G.R. No. L-20475 March 19, 1924 signed by three or more credible witnesses in
In re will of TAN DIUCO, deceased. the presence of the testator and of each other.
MAMERTA BASE, petitioner-appellant. And said section, as amended, further provides
C.K. Langleon for petitioner and appellant. as follows:
ARAULLO, C.J.: * * * The testator or the person
On March 3, 1921, Mamerta Base instituted requested by him to write his name and
this proceeding in the Court of First Instance of the instrumental witnesses of the will,
Leyte for the probate of the will, Exhibit A, shall also sign, as aforesaid, each and
executed, according to her, by the Chinaman every page thereof, on the left margin,
Tan Diuco, a resident of the municipality of and said pages shall be numbered
Malitbog of said province, who died on correlatively in letters placed on the
December 8, 1920. That court denied the upper part of each sheet. The
probate of the will on November 2, 1922, and attestation shall state the number of
the petitioner brought the case on appeal to sheets or pages used, upon which the
this court, alleging that the lower court erred in will is written, and that fact that the
holding that said will was not signed by three testator signed the will and every page
instrumental witnesses and in not allowing it to thereof, or caused some other person to
probate. write his name, under his express
After a hearing on the petition, the Court of direction, in the presence of three
First Instance entered the order appealed from, witnesses, and the latter witnessed and
in which it is found that said will was executed signed the will and all pages thereof in
with all the solemnities prescribed by Act No. the presence of the testator and of each
2645, except that it was not signed by three other.
instrumental witnesses beside the signature of Instrumental witness, as defined by Escriche in
the testator and before the attestation clause, his Diccionario Razonado de Legislacion y
and this fact is the ground upon which the Jurisprudencia, volume 4, page 1115, is one
petition was denied. who takes part in the execution of an
The document in question, Exhibit A, appears instrument or writing.
to have been signed by Simplicio Sala by order At present and under the laws now in force,
of the testator, whose name is before the said particularly Act No. 2645 amendatory to said
signature, by reason of the latter's incapacity section 618 of the Code of Civil Procedure,
on account of his weakness and the trembling when a will is to be executed, the testator
of his hand, the testator also stating that he draws or writes it personally or through another
directed said Simplicio Sala to sign it in his person and signs it also personally, or if he is
name and in the presence of three witnesses physically incapacitated, as in the instant case,
who also signed with him at the bottom of said through another person who may or may not
document, and on the left margin of each of its be the one who prepared or wrote the will, that
three pages correlatively numbered in letters is, the document constituting the testator's last
by Sala in the name of the testator Tan Diuco will and testament. The will having thus been
and by the witnesses therein mentioned, prepared and before it is signed by the testator
named Pablo Maturan, Ladislao Fenomeno, or the person acting in his stead, or the one
and Enrique Peñaredondo. After the signature directed by him to sign it in his name, in which
of the testator, Tan Diuco by Simplicio Sala, case the name of the testator is written before
the following paragraph appears: that of the signer, as above stated, in order that
We, the undersigned witnesses to the said document may have the character of a
forgoing will, do hereby state that the valid will, the testator gathers three or more
testator signed this will and each of its credible witnesses and tells them that the
sheets in the presence of all and each of contents of said document is his will, without
us, and we and each of us likewise did informing them of its contents, and then the
sign this will and all of its sheets in the testator, or the person directed by him to do so,
presence of the testator and each of us, signs it in the presence of the testator and of
witnesses. each other, and the testator or the person
"TAN DIUCO acting in his stead, as well as the three
By "SIMPLICIO SALA witnesses sign on the left margin of each page
"LADISLAO FENOMENO or sheet, which must be numbered correlatively
"PABLO MATURAN in letters on the upper part of the page. These
"ENRIQUE PEÑAREDONDO" witnesses are the witnesses, referred to in the
Section 618 of the Code of Civil Procedure, as aforesaid law as instrumental witnesses, for
amended by Act No. 2645, provides, indeed, the simple reason that they took part in the
11
DECISION
CARSON, J. :
instrument at the time of its execution, or therein; that they heard his statement that the
because it was procured by undue and said instrument, written and drawn up under
Page
his direction, contained his last will; that they
saw and witnessed when, at the express
request of the testator, and under his direction,
the witness, Mariano Zaguirre, wrote at the foot
of the will the name and surname of Juan
Zalamero, and when the latter put the cross
between his written name and surname, each
of the witnesses subscribing it at the time and
in the presence of each other.
For the reasons hereinbefore set forth it is our
opinion that the judgment appealed from
should be reversed and that it be declared, as
we now do, that the will executed by the late
Juan Zalamero while in life, under date of the
29th of October, 1905, was executed in
accordance with the law, and that therefore it
should be duly admitted in order that it may
produce all consequent legal effects, and it is
so ordered without any special ruling as to
costs.
18
Page
G.R. No. 1641 January 19, 1906 for the purpose of signing, or whether he
GERMAN JABONETA, plaintiff-appellant, was signing
vs. A. I believe he was signing.
RICARDO GUSTILO, ET AL., defendants- The truth and accuracy of the testimony of this
appellees. witness does not seem to have been
Ledesma, Sumulong and Quintos for appellant. questioned by any of the parties to the
Del-Pan, Ortigas and Fisher for appellees. proceedings, but the court, nevertheless, found
CARSON, J.: the following facts:
In these proceedings probate was denied the On the 26th day of December, 1901,
last will and testament of Macario Jaboneta, Macario Jaboneta executed under the
deceased, because the lower court was of the following circumstances the document in
opinion from the evidence adduced at the question, which has been presented for
hearing that Julio Javellana, one of the probate as his will:
witnesses, did not attach his signature thereto Being in the house of Arcadio Jarandilla,
in the presence of Isabelo Jena, another of the in Jaro, in this province, he ordered that
witnesses, as required by the provisions of the document in question be written,
section 618 of the Code of Civil Procedure. and calling Julio Javellana, Aniceto
The following is a copy of the evidence which Jalbuena, and Isabelo Jena as
appears of record on this particular point, being witnesses, executed the said document
a part of the testimony of the said Isabeo Jena: as his will. They were all together, and
Q. 1641 Who first signed the will? were in the room where Jaboneta was,
A. 1641 I signed it first, and and were present when he signed the
afterwards Aniceto and the others. document, Isabelo Jena signing
Q. 1641 Who were those others afterwards as a witness, at his request,
to whom you have just referred? and in his presence and in the presence
A. 1641 After the witness Aniceto of the other two witnesses. Aniceto
signed the will I left the house, because Jalbuena then signed as a witness in
I was in a hurry, and at the moment the presence of the testator, and in the
when I was leaving I saw Julio Javellana presence of the other two persons who
with the pen in his hand in position signed as witnesses. At that moment
ready to sign (en actitud de firmar). I Isabelo Jena, being in a hurry to leave,
believe he signed, because he was at took his hat and left the room. As he
the table. . . . was leaving the house Julio Javellana
Q. 1641 State positively whether took the pen in his hand and put himself
Julio Javellana did or did not sign as a in position to sign the will as a witness,
witness to the will. but did not sign in the presence of
A. 1641 I can't say certainly, Isabelo Jena; but nevertheless, after
because as I was leaving the house I Jena had left the room the said Julio
saw Julio Javellana with the pen in his Javellana signed as a witness in the
hand, in position ready to sign. I believe presence of the testator and of the
he signed. witness Aniceto Jalbuena.
Q. 1641 Why do you believe Julio We can not agree with so much of the above
Javellana signed? finding of facts as holds that the signature of
A. 1641 Because he had the pen Javellana was not signed in the presence of
in his hand, which was resting on the Jena, in compliance with the provisions of
paper, though I did not actually see him section 618 of the Code of Civil Procedure.
sign. The fact that Jena was still in the room when
Q. 1641 Explain this contradictory he saw Javellana moving his hand and pen in
statement. the act of affixing his signature to the will, taken
A. 1641 After I signed I asked together with the testimony of the remaining
permission to leave, because I was in a witnesses which shows that Javellana did in
hurry, and while I was leaving Julio had fact there and then sign his name to the will,
already taken the pen in his hand, as it convinces us that the signature was affixed in
appeared, for the purpose of signing, the presence of Jena. The fact that he was in
and when I was near the door I the act of leaving, and that his back was turned
happened to turn my face and I saw that while a portion of the name of the witness was
he had his hand with the pen resting on being written, is of no importance. He, with the
the will, moving it as if for the purpose of other witnesses and the testator, had
signing. assembled for the purpose of executing the
19
Q. 1641 State positively whether testament, and were together in the same
Julio moved his hand with the pen as if room for that purpose, and at the moment
Page
when the witness Javellana signed the
document he was actually and physically
present and in such position with relation to
Javellana that he could see everything which
took place by merely casting his eyes in the
proper direction, and without any physical
obstruction to prevent his doing so, therefore
we are of opinion that the document was in fact
signed before he finally left the room.
The purpose of a statutory requirement
that the witness sign in the presence of
the testator is said to be that the testator
may have ocular evidence of the identity
of the instrument subscribed by the
witness and himself, and the generally
accepted tests of presence are vision
and mental apprehension. (See Am. &
Eng. Enc. of Law, vol. 30, p. 599, and
cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328)
it was held that it is sufficient if the witnesses
are together for the purpose of witnessing the
execution of the will, and in a position to
actually see the testator write, if they choose to
do so; and there are many cases which lay
down the rule that the true test of vision is not
whether the testator actually saw the witness
sign, but whether he might have seen him sign,
considering his mental and physical condition
and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and
the tests of presence as between the testator
and the witnesses are equally applicable in
determining whether the witnesses signed the
instrument in the presence of each other, as
required by the statute, and applying them to
the facts proven in these proceedings we are
of opinion that the statutory requisites as to the
execution of the instrument were complied
with, and that the lower court erred in denying
probate to the will on the ground stated in the
ruling appealed from.
We are of opinion from the evidence of record
that the instrument propounded in these
proceedings was satisfactorily proven to be the
last will and testament of Macario Jaboneta,
deceased, and that it should therefore be
admitted to probate.
The judgment of the trial court is reversed,
without especial condemnation of costs, and
after twenty days the record will be returned to
the court form whence it came, where the
proper orders will be entered in conformance
herewith. So ordered.
20
Page
G.R. No. L-5971 February 27, 1911 The true test of presence of the testator
BEATRIZ NERA, ET AL., plaintiffs-appellees, and the witnesses in the execution of a
vs. will is not whether they actually saw
NARCISA RIMANDO, defendant-appellant. each other sign, but whether they might
Valerio Fontanilla and Andres Asprer for have been seen each other sign, had
appellant. they chosen to do so, considering their
Anacleto Diaz for appellees. mental and physical condition and
CARSON, J.: position with relation to each other at the
The only question raised by the evidence in moment of inscription of each signature.
this case as to the due execution of the But it is especially to be noted that the position
instrument propounded as a will in the court of the parties with relation to each other at the
below, is whether one of the subscribing moment of the subscription of each signature,
witnesses was present in the small room where must be such that they may see each other
it was executed at the time when the testator sign if they choose to do so. This, of course,
and the other subscribing witnesses attached does not mean that the testator and the
their signatures; or whether at that time he was subscribing witnesses may be held to have
outside, some eight or ten feet away, in a large executed the instrument in the presence of
room connecting with the smaller room by a each other if it appears that they would not
doorway, across which was hung a curtain have been able to see each other sign at that
which made it impossible for one in the outside moment, without changing their relative
room to see the testator and the other positions or existing conditions. The evidence
subscribing witnesses in the act of attaching in the case relied upon by the trial judge
their signatures to the instrument. discloses that "at the moment when the
A majority of the members of the court is of witness Javellana signed the document he was
opinion that this subscribing witness was in the actually and physically present and in such
small room with the testator and the other position with relation to Jaboneta that he could
subscribing witnesses at the time when they see everything that took place by merely
attached their signatures to the instrument, and casting his eyes in the proper direction
this finding, of course, disposes of the appeal and without any physical obstruction to prevent
and necessitates the affirmance of the decree his doing so." And the decision merely laid
admitting the document to probate as the last down the doctrine that the question whether
will and testament of the deceased. the testator and the subscribing witnesses to
The trial judge does not appear to have an alleged will sign the instrument in the
considered the determination of this question presence of each other does not depend upon
of fact of vital importance in the determination proof of the fact that their eyes were actually
of this case, as he was of opinion that under cast upon the paper at the moment of its
the doctrine laid down in the case of Jaboneta subscription by each of them, but that at that
vs. Gustilo (5 Phil. Rep., 541) the alleged fact moment existing conditions and their position
that one of the subscribing witnesses was in with relation to each other were such that by
the outer room when the testator and the other merely casting the eyes in the proper direction
describing witnesses signed the instrument in they could have seen each other sign. To
the inner room, had it been proven, would not extend the doctrine further would open the
be sufficient in itself to invalidate the execution door to the possibility of all manner of fraud,
of the will. But we are unanimously of opinion substitution, and the like, and would defeat the
that had this subscribing witness been proven purpose for which this particular condition is
to have been in the outer room at the time prescribed in the code as one of the requisites
when the testator and the other subscribing in the execution of a will.
witnesses attached their signatures to the The decree entered by the court below
instrument in the inner room, it would have admitting the instrument propounded therein to
been invalid as a will, the attaching of those probate as the last will and testament of Pedro
signatures under circumstances not being Rimando, deceased, is affirmed with costs of
done "in the presence" of the witness in the this instance against the appellant.
outer room. This because the line of vision
from this witness to the testator and the other
subscribing witnesses would necessarily have
been impeded by the curtain separating the
inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court
21
IN THE MATTER OF THE PETITION TO Appellees Pedro, 3 Asuncion and Regina, all
PROBATE OF THE WILL OF DIGNA surnamed "Maravilla," who are allegedly the
MARAVILLA, HERMINIO MARAVILLA, brother and sisters of the deceased Digna
petitioner-appellant, and ADELINA SAJO, Maravilla and oppositors to the probate, had
legatee-appellant, v. PEDRO MARAVILLA, moved to require the P. C. Laboratory to
ASUNCION MARAVILLA and REGINA submit explanations of the photographs of the
MARAVILLA, oppositors-appellees, will and the signatures thereon previously filed,
CONCEPCION KOHLHAAS and ROSE 4 but this Court, considering that such
MARY KOHLHAAS, intervenors. explanation would amount to new evidence not
heard at the trial, denied the motion on 3
Felino A. Garcia for legatee-appellant. August 1967. 5
Salonga, Ordoñez, Yap, Sicat & Associates Herminio Maravilla’s petition for probate was
and Paredes, Poblador, Cruz & Nazareno opposed by the appellees in an amended
forPetitioner-Appellant. opposition filed in the course of the trial in the
court below and admitted without objection.
Jose Gutierrez David, Placido C. Ramos, The opposition alleged the following
Augurio Abeto, Alex Mirasol and Alex grounds:jgc:chanrobles.com.ph
Umadhay, for oppositors-appellees.
"a) That the deceased, Digna Maravilla, the
Jose M. Luison for intervenors. alleged testatrix and the instrumental
witnesses did not sign the alleged will, each
and every page thereof, in the presence of
DECISION each other;
Herminio Maravilla, and that said movants for errors their brief.
intervention merely adopt the pleadings and
Page
There is no controversy that the late Digna witnesses. Their signatures appear also on the
Maravilla died in Manapla, Negros Occidental, left margin of all the five (5) pages. The paging
on 12 August 1958, leaving an extensive of the will is by handwritten words, such as
estate. Prior to her death, she was a resident "Pagina Primera," "Pagina Segunda," etc.,
of Saravia, same province. It is, likewise, written at the top of each page. On the lower
undisputed that, at the time of the probate half of the third page, before the name
proceedings, only one (1) (Aquilino Mansueto) "CONCEPCION P. MARAVILLA," is the
of the three (3) attesting witnesses to the will typewritten word "hermana," which was
had survived, the two (2) others (Timoteo crossed out, and over it was handwritten the
Hernaez and Mariano Buenaflor) having died word "cuñada," bearing, at the left hereof, the
previously. initials "D. M."cralaw virtua1aw library
The will submitted for probate, Exhibit "A," After the legacies in favor of herein appellant
which is typewritten in the Spanish language, Adelina Sajo, a niece of Digna Maravilla, the
purports to have been executed in Manila on latter’s sister-in-law, Concepcion P. Maravilla
the 7th day of October, 1944; it consists of five de Kohlhaas, and Concepcion’s daughter,
(5) pages, including the page on which the Rose Mary Kohlhaas, the will named appellant
attestation clause was completed. The Herminio Maravilla as universal heir and
purported signatures of the testatrix appear at executor. In case of the heir’s death, or if he
the logical end of the will on page four and at should not become heir for any reason, he is to
the left margin of all the other pages. The be substituted by the legatee Adelina Sajo in
attestation clause reads as one-half of the properties bequeathed, the
follows:jgc:chanrobles.com.ph other half to pass collectively to legatees
Concepcion P. Maravilla and the daughter of
"CLAUSULA DE ATESTIGUAMIENTO the latter, Rose Mary Kohlhaas. All previous
wills are declared revoked.
"Nosotros, TIMOTEO HERNAEZ, AQUILINO
MANSUETO y MARIANO BUENAFLOR los In view of the trial court’s decision of 8
abajo firmantes todos mayores de edad y sin February 1960 (Record on Appeal, pages 25-
impedimento alguno para ser testigo de este 51) refusing probate of the will, the instituted
testamento, certificamos y atestiguamos: Que heir, Herminio Maravilla, and the legatee,
en la fecha y lugar arriba mencionados Da. Adelina Sajo, perfected their appeal, assigning
DIGNA MARAVILLA ha otorgado el presente as errors the findings of the trial court that (a)
documento como su testamento y ultima instrumental witness Aquilino Mansueto did not
voluntad que consta de cinco paginas utiles actually see Digna Maravilla sign the will; (b)
incluyendo esta pagina de atestiguamiento, that Digna Maravilla was not present when
escrito a maquinilla en una sola cara de cada Mansueto signed the will as witness; (c) that
hoja, todas paginadas correlativamente en Mansueto "most probably" did not see Mariano
letras de puño y letra de la testadora, habiendo Buenaflor sign as witness to the will; (d) the
dicha testadora, despues de leido el mismo en testimony of attorney Manuel Villanueva on the
nuestra presencia, firmado por triplicado al pie due execution of Digna Maravilla’s testament
de este testamento y al margen izquierdo de was biased and not deserving of credit; and (e)
cada una de las cinco paginas de que se in refusing probate to the alleged will for not
compone en presencia de todos y cada uno de having been executed with the requisites
nosotros que tambien firmamos en el margen prescribed by Section 618 of Act 190.
izquierdo de cada pagina y al pie de este
atestiguamiento los unos en presencia de los At the hearing before the court a quo, only one
otros y todos en presencia de lo testadora, of the three instrumental witnesses, Col. (ret.)
quien en el acto del otorgamiento y firma de Aquilino Mansueto, appeared and testified,
este documento se halla en plena capacidad inasmuch as the other two witnesses (Timoteo
intelectual, amenazada ni enganada par Hernaez and Mariano Buenaflor) concededly
otorgar y firmar este testamento. died prior to the trial of the case. Col.
Mansueto identified his own signature and
"Asi lo atestiguamos y firmamos por triplicado those of Dr. Timoteo Hernaez and of Digna
de nuestro puño y letra en Manila hoy a siete Maravilla, and asserted that the latter did sign
de Octubre de mil novecientos cuarenta y in the presence of all three witnesses and
cuatro."cralaw virtua1aw library attorney Villanueva; 7 that Hernaez signed in
his presence and in the presence of the other
At the bottom thereof appear the purported witnesses and of Digna Maravilla and that
23
signatures of Timoteo Hernaez, Aquilino present at the signing were "Dr. Timoteo
Mansueto and Mariano Buenaflor, attesting Hernaez, Mr. Mariano Buenaflor, attorney
Page
Manuel Villanueva and both Herminio Maravilla which list she asked and obtained from her
and Mrs. Digna Maravilla, (the testatrix) and husband. Before leaving, Villanueva asked
identified his signature and those of Digna and Digna to look for three witnesses; their names
Hernaez 8 although, subsequently, the witness were furnished him two or three days later and
admitted that he could not remember very well he sent word that the will could be executed on
whether Mr. Maravilla was there at the time he 7 October 1944 (as it actually was); on that day
signed the will. The witness explained that he he brought one original and 2 copies with him,
could not remember some details because and handed them to Digna; she read the
fourteen years had elapsed, and when he document and while doing so the witnesses
signed as a witness, he did not give it any Mansueto, Hernaez and Buenaflor came.
importance and because of the time he (Col. Villanueva talked with them and satisfied
Mansueto) was very worried because of himself that they were competent, whereupon
rumours that the Japanese Kempeitai would all proceeded to the dining room table.
arrest officers of the USAFFE who did not want Attorney Villanueva sat at the head thereof,
to collaborate. 9 Digna at his right, and Hernaez at the right of
Digna; at his left was first Mansueto and then
Colonel Mansueto’s testimony was supported Buenaflor. At the lawyer’s behest Digna
by that of the husband of the testatrix, Maravilla read the will in the presence of the
Herminio Maravilla, and of attorney Manuel witnesses; after reading she called his
Villanueva. Herminio Maravilla’s evidence is attention to a clerical error on page 3, at the
that a week before 7 October 1944 his wife, second to the last line of paragraph 9, where
Digna Maravilla, told him of her desire to Concepcion Maravilla was designated as
"renew" her will because of the critical period in "hermana" ; the word was cancelled by the
Manila before the liberation; 10 he invited testatrix who wrote "cuñada" above the
Buenaflor, Hernaez and Mansueto to attest to cancelled word, and placed her initials "D. M."
the will; 11 sent his messenger, Mariano beside it. She also wrote on top of each page
Buenaflor, to ask attorney Manuel Villanueva to the words "Pagina primera," "Pagina Segunda"
come to his house at Mabini, Ermita, Manila, in and so on, upon Villanueva’s instructions, and
order to prepare the will; 12 at his wife’s then Digna and the witnesses signed in the
request, he gave the list of properties to presence of one another and of attorney
Villanueva; 13 he knew that the will was Villanueva. 18 The latter did not ask the
executed in the dining room while he remained husband (Herminio) to join the group when the
in the sala; 14 and Villanueva, Mansueto, will was executed, and Herminio remained
Hernaez and Buenaflor were in his house in near the window in the sala. 19 Digna
the morning of 7 October 1944 and sat with his appeared to the witness very healthy and
wife around the table in the dining room, with spoke in Spanish intelligently. The signing
Villanueva at one end, Digna beside him and ended around 12:30 p.m., and after it all ate
the witnesses facing each other; 15 and after lunch. 20
the signing they had lunch, at his invitation,
and when they were eating, petitioner Maravilla Upon the evidence, the trial judge concluded
saw the three (3) copies of the will on the that Mansueto did not actually see Digna
dining table. 16 However, he did not see there Maravilla sign the will in question, basing such
sign. 17 conclusion upon the fact that while Mansueto
positively identified his own signature ("I
Attorney Manuel Villanueva, as third witness identify this as my signature") but not that of
for the proponent asserted that he had been the testatrix, his five answers to the questions
the lawyer of the Maravillas; that 5 or 6 days of counsel, in reference thereto, being "this
before 7 October 1944 he had been must be the signature of Mrs. Digna
summoned through Mariano Buenaflor to the Maravilla."cralaw virtua1aw library
house of the Maravillas at 222 Mabini, Ermita,
Manila, and there met Digna who requested In our opinion, the trial court’s conclusion is far
him to draft a new will, revoking her old one, to fetched, fanciful and unwarranted. It was but
include as additional beneficiaries Adelina natural that witness Mansueto should be
Sajo, Concepcion Maravilla, and the latter’s positive about his own signature, since he was
youngest daughter, Rose Mary Kohlhaas, who familiar with it. He had to be less positive about
lived with her (Digna) and whom she Digna Maravilla’s signature since he could not
considered as her real children, having cared be closely acquainted with the same: for aught
for them since childhood. Digna gave the record shows, the signing of the will was
Villanueva instructions concerning the will, and the only occasion he saw her sign; he had no
24
handed him her old will and a handwritten list opportunity to study her signature before or
of the certificates of title of her properties, after the execution of Exhibit "A." Furthermore,
Page
he witnessed Digna’s signing not less than of Herminio from boyhood, he also had been
fourteen years previously. To demand that in the family lawyer, and his intervention in the
identifying Digna’s signature Mansueto should execution of the will of one of his clients
display a positiveness equal to the certainty became inevitable, for it is not to be expected
shown by him in recognizing his own, exceeds that the testatrix should call upon a stranger for
the bounds of the reasonable. The variation in the purpose. If Villanueva wished to perjure in
the expressions used by the witness is the best favor of Herminio, all he needed was to color
evidence that he was being candid and careful, his testimony against the due execution of the
and it is a clear badge of truthfulness rather will (Exhibit "A") and not in favor thereof, since,
than the reverse. as previously observed, Digna’s first will
(Exhibit "G") was more advantageous to the
The trial court’s error gains no support from widower.
Mansueto’s statement on cross-examination
that "I remember and (I) signed the will in the We find it difficult to understand the trial court’s
presence of all the witnesses and in the distrust of a lawyer who did no more than
presence of attorney Villanueva" (page 29, discharge his professional duty, or its
Volume 1, T.s.n., Amago). In the absence of an readiness to attribute improper motives to
assurance that no one else was present, this proponent’s witnesses. This Court, in Sotelo v.
assertion does not really contradict Mansueto’s Luzan, 59 Phil. 908, has remarked that —
testimony in chief that "I have read the entire
document before I signed it in the presence of "It is hardly conceivable that any attorney of
the other witnesses, Digna Maravilla and any standing would risk his professional
Attorney Villanueva" (t.s.n., Amago, Volume 1, reputation by falsifying a will and then go
pages 18-19). It is well to note that the cross before a court and give false testimony."cralaw
examiner did not ask Mansueto if no one else virtua1aw library
besides those mentioned by him had seen him
sign. Any contradiction inferred from both And in the Fernandez v. Tantoco, 49 Phil. 380,
statements is purely conjectural; it did not 385, We ruled:jgc:chanrobles.com.ph
come from the witness and is insufficient to
impeach his veracity, the difference in the "‘In weighing the testimony of the attesting
answers being due to no more than an witnesses to a will, the statements of a
accidental lapse of memory. A will may be competent attorney, who has been charged
allowed even if some witnesses not remember with the responsibility of seeing to the proper
having attested it, if other evidence execution of the instrument, is entitled to
satisfactorily show due execution (V. Act 190, greater weight than the testimony of a person
Section 632), and that failure of witness to casually called to participate in the act,
identify his signature does not bar probate. 21 supposing of course that no motive is revealed
that should induce the attorney to prevaricate.
That Mansueto, Hernaez and Buenaflor, The reason is that the mind of the attorney,
together with the testatrix and the lawyer, sat being conversant with the requisites of proper
next to one another around one table when the execution of the instrument, is more likely to
will was signed is clearly established by the become fixed on details, and he is more likely
uncontradicted testimony of both attorney than other persons to retain those incidents in
Villanueva and Herminio Maravilla; and that his memory.’" (Italics supplied)
detail proves beyond doubt that each one of
the parties concerned did sign in the presence Appellees endeavoured to sustain the court’s
of all the others. It should be remembered, in refusal to probate the will by referring to the
this connection, that the test is not whether a evidence of their witness Marino Tupas, a man
witness did see the signing of the will but of "no permanent job", 23 who narrated that on
whether he was in a position to see if he chose the last week of September, 1944 one Mariano
to do so. 22 Buenaflor had been introduced to him by one
Lt. Garaton at his guerrilla outpost in
The trial court rejected the evidence of both Montalban and described as a man wanted by
Herminio Maravilla and Manuel Villanueva, the Japanese. Tupas’ patently exaggerated
giving as a reason that they were biased and testimony is that this Buenaflor stayed with him
interested in having the probate succeed. The at his outpost camp until January, 1945, living
reasoning is not warranted: for Herminio and sleeping with him, and was never for a
Maravilla certainly stood to gain more under single moment out of his sight. 24 Why a
the previous will of his wife (Exhibit "G") where civilian refugee should remain at a guerrilla
25
he was made the sole beneficiary, As to outpost for four months; without engaging in
attorney Villanueva, while he had been a friend any particular helpful activity on his part, was
Page
not explained. Shown photographs and asked suspicious, as it does not even appear that
to identify Buenaflor, Tupas hedged by Lopez at the time bothered to inquire from
pleading that the Buenaflor who stayed with other persons what caused his aunt’s alleged
him had a long beard. Thus, oppositor- abnormal condition. Moreover, the court’s duty
appellees’ reverse alibi for the instrumental to reconcile conflicts of evidence should lead it
witness, Mariano Buenaflor, was not only to hold that the symptoms described by Lopez
patently mendacious but did not establish any were due to a temporary disturbance of the
reliable connection between the instrumental nerves caused by the unsettling effect of a
witness of Digna’s will and the Buenaflor who, bombardment not previously experienced,
according to Tupas, stuck to him as a burr in compatible with the due execution of the will on
1944. No wonder the trial court gave no credit 7 October 1944. As between the testimony of
to such evidence. Lopez and that of attorney Villanueva, who
repeatedly visited and talked to the testatrix
Oppositors’ attempts to establish that the around the time her will was executed, We
testatrix Digna Maravilla was mentally have no hesitation in accepting the latter’s view
incompetent to validly execute the will in that Digna Maravilla was competent to make
question met no better fate in the court below. the will when it was signed. The law itself
They introduced one Eufrocina Berja who declares that —
qualified Digna Maravilla as insane because
she saw Digna Maravilla acting strangely one "To be of sound mind, it is not necessary that
morning in 1921 (23 years before the will was the testator be in full possession of all his
executed). In Berja’s own words — reasoning faculties or that his mind be wholly
unbroken, unimpaired or unshattered by
"Would you not call a person insane who is disease, injury or other cause." (Civil Code,
waving a bunch of flowers and singing along a Article 799; Bugnao v. Ubag, 14 Phil. 163.)
road, especially taking into consideration their
reputation in the Community?" (t.s.n., 21 May We are satisfied that the preponderance of
1959, page 19) evidence is to the effect that the testament,
Exhibit "A," was duly executed by a qualified
Even if to this ridiculous appraisal were to be testatrix and competent witnesses, in
added the fact that (according to this witness) conformity with the statutory requirements.
Digna saw her in 1946, but would not answer
her questions and "was in a deep thought (sic) IN VIEW OF THE FOREGOING, the decree of
and her tongue was coming out of her mouth" the court below denying probate of the 1944
(Do., pages 14-15), her evidence would will of Digna Maravilla (Exhibit "A") is reversed
certainly not justify a finding that Digna and the said testament is hereby ordered
Maravilla was not competent to execute the probated. Let the records be returned to the
testament in 1944. By Berja’s standards, any Court of origin for further proceedings
one could be held insane. conformable to law. Costs against oppositors-
appellees.
Nor is the case for the oppositors improved by
the evidence of their witness Eleazar Lopez, Concepcion, C.J., Dizon, Zaldivar, Castro,
who asserted having visited his aunt, Digna Fernando, Teehankee, Barredo, Villamor and
Maravilla (whom he had not seen since he was Makasiar, JJ., concur.
four years old), two days after the first bombing
of Manila by the American planes in
September, 1944. Lopez claimed to have seen
Digna on that occasion laughing and crying
and then staring blankly at the ceiling, without
recognizing the witness; and that he visited her
again toward mid-October of the same year
and she had worsened. 25 Coming from a
nephew who expected to succeed if the will in
question * were denied probate, and who
sought to become administrator of the estate,
even offering to resign from his position in the
government if appointed, 26 this testimony of
Lopez was evidently colored by his monetary
interest, thus leading to its correct discrediting
26
been the case had she continued on the made the witnesses sign, allowed sometime to
horizontal line on which she had written her elapsed before forging the testatrix's signature,
Page
which supposition is not all probable, nor has it
been explained.lawphi1.net
At all events, even admitting that there is a
certain question as to whether the attesting
witnesses signed before or after the testatrix,
or whether or not they signed with the same
pen and ink, these are details of such trivial
importance, considering that this will was
signed two years before the date on which
these witnesses gave their testimony, that it is
not proper to set aside the will for this reason
alone.
The attesting witnesses to this will, who
testified also as witnesses at the trial of this
case, showed themselves to be intelligent and
honest, one of them being a lawyer of twelve
year's practice, and there is no reason to reject
their testimony, and to suppose that they were
untruthful in testifying, and that they falsified
the will in question.
Lastly, attention is called to the
unreasonableness of the testatrix in not leaving
anything to the principal opponent, her sister
Rita Mateo, and to her nephews and nieces, to
whom she had been so affectionate during life.
But as to the affectionate relations between the
deceased and the opponents, only the
opponent Rita Mateo testified, and she only
stated that she was on good terms with her
sister during the latter's lifetime; that the said
sister used to give her a sack or some gantas
of rice, and, a times, a little money; that she
held all her nephews and nieces in equal
regard. But even supposing that this were so,
there is nothing strange in the testatrix having
left nothing to the opponents, or in her having
left all of her estate to the only heir instituted in
her will, Tomas Mateo, who is also one of her
nieces. And not only is it not strange, but it
seems reasonable, since, according to the
evidence of the testatrix when the former was
but 3 years old, and from then on up to the
time of her death had never been separated
from her.
The opposition presented Doctor Banks as
expert. He testified that the signatures of the
testatrix in the will are not genuine. The
petitioner, on the other hand, presented
another expert, Pedro Serrano Laktao, who
affirmed that these signatures are genuine.
But, over the testimony of these experts, we
have the categorical and positive declaration of
veracious witnesses who affirm that these
signatures were written by the testatrix herself.
The judgment appealed from is affirmed, with
costs against the appellants. So ordered.
28
Page
G.R. No. L-37453 May 25, 1979 Pages) pati na ang dahong ito,
RIZALINA GABRIEL GONZALES, petitioner, na siya niyang TESTAMENTO
vs. AT HULING HABILIN, ngayong
HONORABLE COURT OF APPEALS and ika 15 ng Abril, 1961, ay
LUTGARDA SANTIAGO, respondents. nilagdaan ng nasabing testadora
Francisco D. Rilloraza, Jr. for petitioners. na si Isabel Gabriel ang nasabing
Angel A. Sison for private respondent. testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na
GUERRERO, J.: dahon (page four) at nasa itaas
This is a petition for review of the decision of ng patunay naming ito, at sa
the Court of Appeals, First kaliwang panig ng lahat at bawat
1
Division, promulgated on May 4, 1973 in CA dahon (and on the left hand
G.R. No. 36523-R which reversed the decision margin of each and every page),
of the Court of First Instance of Rizal dated sa harap ng lahat at bawat isa sa
December 15, 1964 and allowed the probate of amin, at kami namang mga saksi
the last will and testament of the deceased ay lumagda sa harap ng
Isabel Gabriel. * nasabing testadora, at sa harap
It appears that on June 24, 1961, herein ng lahat at bawat isa sa amin, sa
private respondent Lutgarda Santiago filed a ilalim ng patunay ng mga saksi at
petition with the Court of First Instance of Rizal sa kaliwang panig ng lahat at
docketed as Special Proceedings No. 3617, for bawa't dahon ng testamentong
the probate of a will alleged to have been ito.
executed by the deceased Isabel Gabriel and At the bottom thereof, under the heading
designating therein petitioner as the principal "Pangalan", are written the signatures of
beneficiary and executrix. Matilde D. Orobia, Celso D. Gimpaya and
There is no dispute in the records that the late Maria R. Gimpaya, and opposite the same,
Isabel Andres Gabriel died as a widow and under the heading "Tirahan", are their
without issue in the municipality of Navotas, respective places of residence, 961 Highway
province of Rizal her place of residence, on 54, Philamlife, for Miss Orobia, and 12 Dagala
June 7, 1961 at the age of eighty-five (85), St., Navotas, Rizal, for the two Gimpayas.
having been born in 1876. It is likewise not Their signatures also appear on the left margin
controverted that herein private respondent of all the other pages. The WW is paged by
Lutgarda Santiago and petitioner Rizalina typewritten words as follows: "Unang Dahon"
Gabriel Gonzales are nieces of the deceased, and underneath "(Page One)", "Ikalawang
and that private respondent, with her husband Dahon" and underneath "(Page Two)", etc.,
and children, lived with the deceased at the appearing at the top of each page.
latters residence prior an- d up to the time of The will itself provides that the testatrix desired
her death. to be buried in the Catholic Cemetery of
The will submitted for probate, Exhibit "F", Navotas, Rizal in accordance with the rites of
which is typewritten and in Tagalog, appears to the Roman Catholic Church, all expenses to be
have been executed in Manila on the 15th day paid from her estate; that all her obligations, if
of April, 1961, or barely two (2) months prior to any, be paid; that legacies in specified
the death of Isabel Gabriel. It consists of five amounts be given to her sister, Praxides
(5) pages, including the pages whereon the Gabriel Vda. de Santiago, her brother Santiago
attestation clause and the acknowledgment of Gabriel, and her nephews and nieces,
the notary public were written. The signatures Benjamin, Salud, Rizalina (herein petitioner),
of the deceased Isabel Gabriel appear at the Victoria, Ester, Andres, all surnamed Gabriel,
end of the will on page four and at the left and Evangeline, Rudyardo Rosa, Andrea,
margin of all the pages. The attestation clause, Marcial, Numancia, Verena an surnamed
which is found on page four, reads as follows: Santiago. To herein private respondent
PATUNAY NG MGA SAKSI Lutgarda Santiago, who was described in the
Kaming mga nakalagdang mga will by the testatrix as "aking mahal na
saksi o testigo na ang aming mga pamangkin na aking pinalaki, inalagaan at
tinitirahan ay nakasulat sa minahal na katulad ng isang tunay na anak"
gawing kanan at kahilira ng and named as universal heir and executor,
aming mga pangalan sa ibaba were bequeathed all properties and estate, real
nito, ay pagpapatutuo na or personal already acquired, or to be
ipinakilala ipinaalam at acquired, in her testatrix name, after satisfying
ipinahayag sa amin ni Isabel the expenses, debts and legacies as
29
Suntay, 95 Phil. 500, the Supreme Court held competency being determined as
that "Granting that a will was duly executed of the date of the execution of the
Page
will and not of the timr it is offered Under the second, third, fourth, fifth, sixth,
for probate,Smith vs. Goodell 101 seventh and eighth assignments of errors,
N.E. 255, 256, 258 111. 145. petitioner disputes the findings of fact of the
(Ibid.) respondent court in finding that the preparation
Credible witnesses as used in the and execution of the will was expected and not
statute relating to wills, means coincidental, in finding that Atty. Paraiso was
competent witnesses — that is, not previously furnished with the names and
such persons as are not legally residence certificates of the witnesses as to
disqualified from testifying in enable him to type such data into the
courts of justice, by reason of document Exhibit "F", in holding that the fact
mental incapacity, interest, or the that the three typewritten lines under the
commission of crimes, or other typewritten words "pangalan" and "tinitirahan"
cause excluding them from were left blank shows beyond cavil that the
testifying generally, or rendering three attesting witnesses were all present in
them incompetent in respect of the same occasion, in holding credible that
the particular subject matter or in Isabel Gabriel could have dictated the will
the particular suit. Hill vs. without note or document to Atty. Paraiso, in
Chicago Title & Trust co 152 N.E. holding that Matilde Orobia was physically
545, 546, 322 111. 42. (Ibid. p, present when the will was signed on April 15,
343) 1961 by the deceased Isabel Gabriel and the
In the strict sense, the competency of a person other witnesses Celso Gimpaya and Maria
to be an instrumental witness to a will is Gimpaya, in holding that the trial court gave
determined by the statute, that is Art. 820 and undue importance to the picture takings as
821, Civil Code, whereas his credibility proof that the will was improperly executed,
depends On the appreciation of his testimony and in holding that the grave contradictions,
and arises from the belief and conclusion of the evasions and misrepresentations of the
Court that said witness is telling the truth. witnesses (subscribing and notary) presented
Thus, in the case ofVda. de Aroyo v. El by the petitioner had been explained away.
Beaterio del Santissimo Rosario de Molo, No. Since the above errors are factual We must
L-22005, May 3, 1968, the Supreme Court held repeat what We have previously laid down that
and ruled that: "Competency as a witness is the findings of fact of the appellate court are
one thing, and it is another to be a credible binding and controlling which We cannot
witness, so credible that the Court must accept review, subject to certain exceptions which We
what he says. Trial courts may allow a person win consider and discuss hereinafter. We are
to testify as a witness upon a given matter convinced that the appellate court's findings
because he is competent, but may thereafter are sufficiently justified and supported by the
decide whether to believe or not to believe his evidence on record. Thus, the alleged
testimony." In fine, We state the rule that the unnaturalness characterizing the trip of the
instrumental witnesses in Order to be testatrix to the office of Atty. Paraiso and
competent must be shown to have the bringing all the witnesses without previous
qualifications under Article 820 of the Civil appointment for the preparation and execution
Code and none of the disqualifications under of the win and that it was coincidental that Atty.
Article 821 and for their testimony to be Paraiso was available at the moment impugns
credible, that is worthy of belief and entitled to the finding of the Court of Appeals that
credence, it is not mandatory that evidence be although Atty. Paraiso admitted the visit of
first established on record that the witnesses Isabel Gabriel and of her companions to his
have a good standing in the community or that office on April 15, 1961 was unexpected as
they are honest and upright or reputed to be there was no prior appointment with him, but
trustworthy and reliable, for a person is he explained that he was available for any
presumed to be such unless the contrary is business transaction on that day and that
established otherwise. In other words, the Isabel Gabriel had earlier requested him to
instrumental witnesses must be competent and help her prepare her will. The finding of the
their testimonies must be credible before the appellate court is amply based on the
court allows the probate of the will they have testimony of Celso Gimpaya that he was not
attested. We, therefore, reject petitioner's only informed on the morning of the day that he
position that it was fatal for respondent not to witnessed the will but that it was the third time
have introduced prior and independent proof of when Isabel Gabriel told him that he was going
the fact that the witnesses were "credible to witness the making of her will, as well as the
witnesses that is, that they have a good testimony of Maria Gimpaya that she was
34
standing in the community and reputed to be called by her husband Celso Gimpaya to
trustworthy and reliable. proceed to Isabel Gabriel's house which was
Page
nearby and from said house, they left in a car petitioner assails as contradictory and
to the lawyer's office, which testimonies are irreconcilable with the statement of the Court
recited in the respondent Court's decision. that Atty. Paraiso was handed a list (containing
The respondent Court further found the the names of the witnesses and their
following facts: that Celso Gimpaya and his respective residence certificates) immediately
wife Maria Gimpaya obtained residence upon their arrival in the law office by Isabel
certificates a few days before Exhibit "F" was Gabriel and this was corroborated by Atty.
executed. Celso Gimpaya's residence Paraiso himself who testified that it was only on
certificate No. A-5114942 was issued at said occasion that he received such list from
Navotas, Rizal on April 13, 1961 while Maria Isabel Gabriel, We cannot agree with
Gimpaya's residence certificate No. A-5114974 petitioner's contention. We find no contradiction
was issued also at Navotas, Rizal on April 14, for the, respondent Court held that on the
1961. The respondent Court correctly observed occasion of the will making on April 15, 1961,
that there was nothing surprising in these facts the list was given immediately to Atty. Paraiso
and that the securing of these residence and that no such list was given the lawyer in
certificates two days and one day, respectively, any previous occasion or date prior to April 15,
before the execution of the will on April 15, 1961.
1961, far from showing an amazing But whether Atty. Paraiso was previously
coincidence, reveals that the spouses were furnished with the names and residence
earlier notified that they would be witnesses to certificates of the witnesses on a prior occasion
the execution of Isabel Gabriel's will. or on the very occasion and date in April 15,
We also agree with the respondent Court's 1961 when the will was executed, is of no
conclusion that the excursion to the office of moment for such data appear in the notarial
Atty. Paraiso was planned by the deceased, acknowledgment of Notary Public Cipriano
which conclusion was correctly drawn from the Paraiso, subscribed and sworn to by the
testimony of the Gimpaya spouses that they witnesses on April 15, 1961 following the
started from the Navotas residence of the attestation clause duly executed and signed on
deceased with a photographer and Isabel the same occasion, April 15, 1961. And since
Gabriel herself, then they proceeded by car to Exhibit "F" is a notarial will duly acknowledged
Matilde Orobia's house in Philamlife, Quezon by the testatrix and the witnesses before a
City to fetch her and from there, all the three notary public, the same is a public document
witnesses (the Gimpayas and Orobia) passed executed and attested through the intervention
by a place where Isabel Gabriel stayed for of the notary public and as such public
about ten to fifteen minutes at the clinic of Dr. document is evidence of the facts in clear,
Chikiamco before they proceeded to Atty. unequivocal manner therein expressed. It has
Cipriano Paraiso's office. in its favor the presumption of regularity. To
It is also evident from the records, as testified contradict all these, there must be evidence
to by Atty. Paraiso, that previous to the day that is clear, convincing and more than merely
that. the will was executed on April 15, 1961, preponderant. (Yturalde vs. Azurin, 28 SCRA
Isabel Gabriel had requested him to help her in 407). We find no such evidence pointed by
the execution of her will and that he told her petitioner in the case at bar.
that if she really wanted to execute her will, she Likewise, the conclusion of the Court of
should bring with her at least the Mayor of Appeals in holding that the fact that the three
Navotas, Rizal and a Councilor to be her typewritten lines under the typewritten words
witnesses and that he (Atty. Paraiso) wanted a "pangalan ' and "tinitirahan" were left blank
medical certificate from a physician shows beyond cavil that the three attesting
notwithstanding the fact that he believed her to witnesses were all present in the same
be of sound and disposition mind. From this occasion merits Our approval because tills
evidence, the appellate court rightly concluded, conclusion is supported and borne out by the
thus: "It is, therefore, clear that the presence of evidence found by the appellate court, thus:
Isabel Gabriel and her witnesses Matilde "On page 5 of Exhibit "F", beneath the
Orobia, Celso Gimpaya and Maria Gimpaya typewritten words "names", "Res. Tax Cert.
including the photographer in the law office of date issued" and place issued the only name of
Atty. Paraiso was not coincidental as their Isabel Gabriel with Residence Tax certificate
gathering was pre-arranged by Isabel Gabriel No. A-5113274 issued on February 24, 1961 at
herself." Navotas Rizal appears to be in typewritten
As to the appellate court's finding that Atty. form while the names, residence tax certificate
Paraiso was not previously furnished with the numbers, dates and places of issuance of said
names and residence certificates of the certificates pertaining to the three (3) witnesses
35
witnesses as to enable him to type such data were personally handwritten by Atty. Paraiso.
into the document Exhibit ' L which the Again, this coincides with Atty. Paraiso's even
Page
the sale must be made to close relatives; and Gimpaya and Maria Gimpaya. The trial court's
the seventh was the appointment of the conclusion that Orobia's admission that she
appellant Santiago as executrix of the will gave piano lessons to the child of the appellant
without bond. The technical description of the on Wednesdays and Saturdays and that April
properties in paragraph 5 of Exhibit F was not 15, 1961 happened to be a Saturday for which
given and the numbers of the certificates of title reason Orobia could not have been present to
were only supplied by Atty. Paraiso. " witness the will on that — day is purely
It is true that in one disposition, the numbers of conjectural. Witness Orobia did not admit
the Torrens titles of the properties disposed having given piano lessons to the appellant's
and the docket number of a special proceeding child every Wednesday and Saturday without
are indicated which Atty. Paraiso candidly fail. It is highly probable that even if April 15,
admitted were supplied by him, whereupon 1961 were a Saturday, she gave no piano
petitioner contends that it was incredible that lessons on that day for which reason she could
Isabel Gabriel could have dictated the will have witnessed the execution of the will.
Exhibit "F" without any note or document to Orobia spoke of occasions when she missed
Atty. Paraiso, considering that Isabel Gabriel giving piano lessons and had to make up for
was an old and sickly woman more than the same. Anyway, her presence at the law
eighty-one years old and had been suffering office of Atty. Paraiso was in the morning of
from a brain injury caused by two severe blows April 15, 1961 and there was nothing to
at her head and died of terminal cancer a few preclude her from giving piano lessons on the
weeks after the execution of Exhibit "F". While afternoon of the same day in Navotas, Rizal."
we can rule that this is a finding of fact which is In addition to the testimony of Matilde Orobia,
within the competency of the respondent Celso Gimpaya and Maria Gimpaya that
appellate court in determining the testamentary Matilde was present on April 15, 1961 and that
capacity of the testatrix and is, therefore, she signed the attestation clause to the will and
beyond Our power to revise and review, We on the left-hand margin of each of the pages of
nevertheless hold that the conclusion reached the will, the documentary evidence which is the
by the Court of Appeals that the testatrix will itself, the attestation clause and the notarial
dictated her will without any note or acknowledgment overwhelmingly and
memorandum appears to be fully supported by convincingly prove such fact that Matilde
the following facts or evidence appearing on Orobia was present on that day of April 15,
record. Thus, Isabel Gabriel, despite her age, 1961 and that she witnessed the will by signing
was particularly active in her business affairs her name thereon and acknowledged the same
as she actively managed the affairs of the before the notary public, Atty. Cipriano P.
movie business ISABELITA Theater, paying Paraiso. The attestation clause which Matilde
the aparatistas herself until June 4, 1961, 3 Orobia signed is the best evidence as to the
days before her death. She was the widow of date of signing because it preserves in
the late Eligio Naval, former Governor of Rizal permanent form a recital of all the material
Province and acted as coadministratrix in the facts attending the execution of the will. This is
Intestate Estate of her deceased husband the very purpose of the attestation clause
Eligio Naval. The text of the win was in which is made for the purpose of preserving in
Tagalog, a dialect known and understood by permanent form a record of the facts attending
her and in the light of all the circumstances, the execution of the will, so that in case of
We agree with the respondent Court that the failure in the memory of the subscribing
testatrix dictated her will without any note or witnesses, or other casualty they may still be
memorandum, a fact unanimously testified to proved. (Thompson on Wills, 2nd ed., Sec.
by the three attesting witnesses and the notary 132; Leynez vs. Leynez, 68 Phil. 745).
public himself. As to the seventh error assigned by petitioner
Petitioner's sixth assignment of error is also faulting the Court of Appeals in holding that the
bereft of merit. The evidence, both testimonial trial court gave undue importance to the
and documentary is, according to the picture-takings as proof that the win was
respondent court, overwhelming that Matilde improperly executed, We agree with the
Orobia was physically present when the will reasoning of the respondent court that:
was signed on April 15, 1961 by the testatrix "Matilde Orobia's Identification of the
and the other two witnesses, Celso Gimpaya photographer as "Cesar Mendoza", contrary to
and Maria Gimpaya. Such factual finding of the what the other two witnesses (Celso and Maria
appellate court is very clear, thus: "On the Gimpaya) and Atty. Paraiso said that the
contrary, the record is replete with proof that photographer was Benjamin Cifra, Jr., is at
Matilde Orobia was physically present when worst a minor mistake attributable to lapse of
36
the will was signed by Isabel Gabriel on April time. The law does not require a photographer
'15, 1961 along with her co-witnesses Celso for the execution and attestation of the will. The
Page
fact that Miss Orobia mistakenly Identified the and coinciding with each other with regard to
photographer as Cesar Mendoza scarcely details of an incident and that witnesses are
detracts from her testimony that she was not expected to remember all details. Human
present when the will was signed because experience teach us "that contradictions of
what matters here is not the photographer but witnesses generally occur in the details of
the photograph taken which clearly portrays certain incidents, after a long series of
Matilde Orobia herself, her co-witnesses Celso questionings, and far from being an evidence
Gimpaya. " Further, the respondent Court of falsehood constitute a demonstration of
correctly held: "The trial court gave undue good faith. In as much as not all those who
importance to the picture takings, jumping witness an incident are impressed in like
therefrom to the conclusion that the will was manner, it is but natural that in relating their
improperly executed. The evidence however, impressions, they should not agree in the
heavily points to only one occasion of the minor details; hence the contradictions in their
execution of the will on April 15, 1961 which testimony." (Lopez vs. Liboro, 81 Phil. 429).
was witnessed by Matilde Orobia, Celso It is urged of Us by the petitioner that the
Gimpaya and Maria Gimpaya. These findings of the trial court should not have been
witnesses were quite emphatic and positive disturbed by the respondent appellate court
when they spoke of this occasion. Hence, their because the trial court was in a better position
Identification of some photographs wherein to weigh and evaluate the evidence presented
they all appeared along with Isabel Gabriel and in the course of the trial. As a general rule,
Atty. Paraiso was superfluous." petitioner is correct but it is subject to well-
Continuing, the respondent Court declared: "It established exceptions. The right of the Court
is true that the second picture-taking was of Appeals to review, alter and reverse the
disclosed at the cross examination of Celso findings of the trial court where the appellate
Gimpaya. But this was explained by Atty. court, in reviewing the evidence has found that
Paraiso as a reenactment of the first incident facts and circumstances of weight and
upon the insistence of Isabel Gabriel. Such influence have been ignored and overlooked
reenactment where Matilde Orobia was and the significance of which have been
admittedly no longer present was wholly misinterpreted by the trial court, cannot be
unnecessary if not pointless. What was disputed. Findings of facts made by trial courts
important was that the will was duly executed particularly when they are based on conflicting
and witnessed on the first occasion on April 15, evidence whose evaluation hinges on
1961 , " and We agree with the Court's questions of credibility of contending witnesses
rationalization in conformity with logic, law and hes peculiarly within the province of trial courts
jurisprudence which do not require picture- and generally, the appellate court should not
taking as one of the legal requisites for the interfere with the same. In the instant case,
execution or probate of a will. however, the Court of Appeals found that the
Petitioner points to alleged grave trial court had overlooked and misinterpreted
contradictions, evasions and the facts and circumstances established in the
misrepresentations of witnesses in their record. Whereas the appellate court said that
respective testimonies before the trial court. On "Nothing in the record supports the trial court's
the other hand, the respondent Court of unbelief that Isabel Gabriel dictated her will
Appeals held that said contradictions, evasions without any note or document to Atty. Paraiso;"
and misrepresentations had been explained that the trial court's conclusion that Matilde
away. Such discrepancies as in the description Orobia could not have witnessed anybody
of the typewriter used by Atty. Paraiso which signing the alleged will or that she could not
he described as "elite" which to him meant big have witnessed Celso Gimpaya and Maria
letters which are of the type in which the will Gimpaya sign the same or that she witnessed
was typewritten but which was Identified by only the deceased signing it, is a conclusion
witness Jolly Bugarin of the N.B.I. as pica the based not on facts but on inferences; that the
mistake in mentioning the name of the trial court gave undue importance to the
photographer by Matilde Orobia to be Cesar picture-takings, jumping therefrom to the
Mendoza when actually it was Benjamin Cifra, conclusion that the will was improperly
Jr.— these are indeed unimportant details executed and that there is nothing in the entire
which could have been affected by the lapse of record to support the conclusion of the court a
time and the treachery of human memory such quo that the will signing occasion was a mere
that by themselves would not alter the coincidence and that Isabel Gabriel made an
probative value of their testimonies on the true appointment only with Matilde Orobia to
execution of the will, (Pascual vs. dela Cruz, 28 witness the signing of her will, then it becomes
37
SCRA 421, 424) for it cannot be expected that the duty of the appellate court to reverse
the testimony of every person win be Identical findings of fact of the trial court in the exercise
Page
of its appellate jurisdiction over the lower Isabel Gabriel, Celso Gimpaya, Maria Gimpaya
courts. and Atty. Paraiso, taken on said occasion of
Still the petitioner insists that the case at bar is the signing of the will, and another, Exhibit "H",
an exception to the rule that the judgment of showing Matilde Orobia signing testimony that
the Court of Appeals is conclusive as to the he had earlier advised Isabel Gabriel to bring
facts and cannot be reviewed by the Supreme with her at least the Mayor and a Councilor of
Court. Again We agree with the petitioner that Navotas, Rizal to be her witnesses for he did
among the exceptions are: (1) when the not know beforehand the Identities of the three
conclusion is a finding grounded entirely on attesting witnesses until the latter showed up at
speculations, surmises or conjectures; (2) his law office with Isabel Gabriel on April 15,
when the inference is manifestly mistaken, 1961. Atty. Paraiso's claim which was not
absurd or impossible; (3) when there is a grave controverted that he wrote down in his own
abuse of discretion; (4) when the presence of hand the date appearing on page 5 of Exhibit
each other as required by law. " Specifically, "F" dissipates any lingering doubt that he
We affirm that on April 15, 1961 the testatrix prepared and ratified the will on the date in
Isabel Gabriel, together with Matilde Orobia, question."
Celso Gimpaya and his wife Maria Gimpaya, It is also a factual finding of the Court of
and a photographer proceeded in a car to the Appeals in holding that it was credible that
office of Atty. Cipriano Paraiso at the Bank of Isabel Gabriel could have dictated the will,
P.I. Building, Manila in the morning of that day; Exhibit "F", without any note or document to
that on the way, Isabel Gabriel obtained a Atty. Paraiso as against the contention of
medical certificate from one Dr. Chikiamko petitioner that it was incredible. This ruling of
which she gave to Atty. Paraiso upon arriving the respondent court is fully supported by the
at the latter's office and told the lawyer that she evidence on record as stated in the decision
wanted her will to be made; that Atty. Paraiso under review, thus: "Nothing in the record
asked Isabel Gabriel to dictate what she supports the trial court's unbelief that Isabel
wanted to be written in the will and the attorney Gabriel dictated her will without any note or
wrote down the dictation of Isabel Gabriel in document to Atty. Paraiso. On the contrary, all
Tagalog, a language known to and spoken by the three attesting witnesses uniformly testified
her; that Atty. Paraiso read back to her what he that Isabel Gabriel dictated her will to Atty.
wrote as dictated and she affirmed their Paraiso and that other than the piece of paper
correctness; the lawyer then typed the will and that she handed to said lawyer she had no
after finishing the document, he read it to her note or document. This fact jibes with the
and she told him that it was alright; that evidence — which the trial court itself believed
thereafter, Isabel Gabriel signed her name at was unshaken — that Isabel Gabriel was of
the end of the will in the presence of the three sound disposing memory when she executed
witnesses Matilde Orobia, Celso Gimpaya and her will.
Maria Gimpaya and also at the left-hand Exhibit "F" reveals only seven (7) dispositions
margin of each and every page of the which are not complicated but quite simple.
document in the presence also of the said The first was Isabel Gabriel's wish to be
three witnesses; that thereafter Matilde Orobia interred according to Catholic rites the second
attested the will by signing her name at the end was a general directive to pay her debts if any;
of the attestation clause and at the left-hand the third provided for P1,000.00 for her sister
margin of pages 1, 2, 3 and 5 of the document Praxides Gabriel Vda. de Santiago and
in the presence of Isabel Gabriel and the other P2,000.00 for her brother Santiago Gabriel; the
two witnesses, Celso Gimpaya and Maria fourth was a listing of her 13 nephews and
Gimpaya; then, Celso Gimpaya signed also the nieces including oppositor-appellee Rizalina
will at the bottom of the attestation clause and Gabriel and the amount for each legatee the
at the left-hand margin of the other pages of fifth was the institution of the petitioner-
the document in the presence of Isabel appellant, Lutgarda Santiago as the principal
Gabriel, Matilde Orobia and Maria Gimpaya; heir mentioning in general terms seven (7)
that Maria Gimpaya followed suit, signing her types of properties; the sixth disposed of the
name at the foot of the attestation clause and remainder of her estate which she willed in
at the left-hand margin of every page in the favor of appellant Lutgarda Santiago but
presence of Isabel Gabriel, Matilde Orobia and prohibiting the sale of such properties to
Celso Gimpaya; that thereafter, Atty. Paraiso anyone except in extreme situations in which
notarized the will as Page No. 94, Book No. IV, judgment is based on a misapprehension of
Series of 1961, in his Notarial Register. On the facts; (5) when the findings of fact are
occasion of the execution and attestation of the conflicting, (6) when the Court of Appeals, in
38
will, a photographer took pictures, one Exhibit making its findings, went beyond the issues of
"G", depicting Matilde Orobia, the testatrix the case and the same is contrary to the
Page
admissions of both appellant and appellee. so a simulated signing was performed during
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. which incident Matilde Orobia was not present.
31, 1967; Ramos vs. Pepsi Cola Bottling Co., Petitioner's exacerbation centers on the
G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. supposed incredibility of the testimonies of the
City of Manila, G.R. No. L-19570; Sept. 14, witnesses for the proponent of the will, their
1967). alleged evasions, inconsistencies and
Petitioner's insistence is without merit. We hold contradictions. But in the case at bar, the three
that the case at bar does not fall within any of instrumental witnesses who constitute the best
the exceptions enumerated above. We likewise evidence of the will making have testified in
hold that the findings of fact of the respondent favor of the probate of the will. So has the
appellate court are fully supported by the lawyer who prepared it, one learned in the law
evidence on record. The conclusions are fully and long in the practice thereof, who thereafter
sustained by substantial evidence. We find no notarized it. All of them are disinterested
abuse of discretion and We discern no witnesses who stand to receive no benefit from
misapprehension of facts. The respondent the testament. The signatures of the witnesses
Court's findings of fact are not conflicting. and the testatrix have been identified on the
Hence, the well-established rule that the will and there is no claim whatsoever and by
decision of the Court of Appeals and its anyone, much less the petitioner, that they
findings of fact are binding and conclusive and were not genuine. In the last and final analysis,
should not be disturbed by this Tribunal and it the herein conflict is factual and we go back to
must be applied in the case at bar in its full the rule that the Supreme Court cannot review
force and effect, without qualification or and revise the findings of facts of the
reservation. The above holding simply respondent Court of Appeals.
synthesize the resolutions we have heretofore WHEREFORE, IN VIEW OF THE
made in respect ' to petitioner's previous FOREGOING, the judgment appealed from is
assignments of error and to which We have hereby AFFIRMED, with costs against the
disagreed and, therefore, rejected. petitioner.
The last assignments of error of petitioner must SO ORDERED.
necessarily be rejected by Us as We find the
respondent Court acted properly and correctly
and has not departed from the accepted and
usual course of judicial proceedings as to call
for the exercise of the power of supervision by
the Supreme Court, and as We find that the
Court of Appeals did not err in reversing the
decision of the trial court and admitting to
probate Exhibit "F", the last will and testament
of the deceased Isabel Gabriel.
We rule that the respondent Court's factual
findings upon its summation and evaluation of
the evidence on record is unassailable that:
"From the welter of evidence presented, we are
convinced that the will in question was
executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in
the the will on a table with Isabel Gabriel,
Celso Gimpaya and Maria Gimpaya sitting
around the table. Atty. Paraiso, after finishing
the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for
his file and notarial register. A few days
following the signing of the will, Isabel Gabriel,
Celso Gimpaya and another photographer
arrived at the office of Atty. Paraiso and told
the lawyer that she wanted another picture
taken because the first picture did not turn out
good. The lawyer told her that this cannot be
done because the will was already signed but
39
declared after an elaborate examination of the are engaged in other discussions more
American and English authorities that when a
Page
simulated than real. These considerations are, names on the left margin of each and every
we think, decisive. page; and it is undeniable that the general
In ruling upon the point above presented we do doctrine is to the effect that all statutory
not wish to be understood as laying down any requirements as to the execution of wills must
hard and fast rule that would prove an be fully complied with. The same doctrine is
embarrassment to this court in the also deducible from cases heretofore decided
administration of justice in the future. In one by this court.
way or another we are constantly here Still some details at times creep into legislative
considering aspects of cases and applying enactments which are so trivial it would be
doctrines which have escaped the attention of absurd to suppose that the Legislature could
all persons concerned in the litigation below; have attached any decisive importance to
and this is necessary if this court is to them. The provision to the effect that the
contribute the part due from it in the correct signatures of the testator and witnesses shall
decision of the cases brought before it. What be written on the left margin of each page —
we mean to declare is that when we believe rather than on the right margin — seems to be
that substantial justice has been done in the this character. So far as concerns the
Court of First Instance, and the point relied on authentication of the will, and of every part
for reversal in this court appears to be one thereof, it can make no possible difference
which ought properly to have been presented whether the names appear on the left or no the
in that court, we will in the exercise of a sound right margin, provided they are on one or the
discretion ignore such question relates a defect other. In Caraig vs. Tatlonghari (R. G. No.
which might have been cured in the Court of 12558, decided March 23, 1918, not reported),
First Instance if attention had been called to it this court declared a will void which was totally
there. In the present case, if the appellant had lacking in the signatures required to be written
raised this question in the lower court, either at on its several pages; and in the case of Re
the hearing or upon a motion for a new trial, estate of Saguinsin (41 Phil., 875), a will was
that court would have had the power, and it likewise declared void which contained the
would have been is duty, considering the tardy necessary signatures on the margin of each
institution of the contest, to have granted a new leaf ( folio), but not in the margin of each page
trial in order that all the witnesses to the will containing written matter.
might be brought into court. But instead of thus The instrument now before us contains the
calling the error to the attention of the court necessary signatures on every page, and the
and his adversary, the point is first raised by only point of deviation from the requirement of
the appellant in this court. We hold that this is the statute is that these signatures appear in
too late. the right margin instead of the left. By the
Properly understood, the case of mode of signing adopted every page and
Cabang vs. Delfinado, supra, contains nothing provision of the will is authenticated and
inconsistent with the ruling we now make, for it guarded from possible alteration in exactly the
appears from the opinion in that case that the same degree that it would have been protected
proponent of the will had obtained an order for by being signed in the left margin; and the
a republication and new trial for the avowed resources of casuistry could be exhausted
purpose of presenting the two additional without discovering the slightest difference
attesting witnesses who had not been between the consequences of affixing the
previously examined, but nevertheless signatures in one margin or the other.
subsequently failed without any apparent The same could not be said of a case like that
reason to take their testimony. Both parties in of Estate of Saguinsin, supra, where only the
that case were therefore fully apprised that the leaves, or alternate pages, were signed and
question of the number of witnesses necessary not each written page; for as observed in that
to prove the will was in issue in the lower court. case by our late lamented Chief Justice, it was
The second point involved in this case is possible that in the will as there originally
whether, under section 618 of the Code of Civil executed by the testratrix only the alternative
Procedure, as amended by Act No. 2645, it is pages had been used, leaving blanks on the
essential to the validity of a will in this reverse sides, which conceivably might have
jurisdiction that the names of the testator and been filled in subsequently.
the instrumental witnesses should be written The controlling considerations on the point now
on the left margin of each page, as required in before us were well stated In Re will of
said Act, and not upon the right margin, as in Abangan (40 Phil., 476, 479), where the court,
the will now before us; and upon this we are of speaking through Mr. Justice Avanceña, in a
the opinion that the will in question is valid. It is case where the signatures were placed at the
45
true that the statute says that the testator and bottom of the page and not in the margin, said:
the instrumental witnesses shall sign their
Page
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution o will and
testaments and to guarantee their truth
and authenticity. Therefore the laws on
this subject should be interpreted in
such a way as to attain these primordial
ends. But, on the other hand, also one
must not lose sight of the fact that it is
not the object of the law to restrain and
curtail the exercise of the right to make
a will. So when an interpretation already
given assures such ends, any other
interpretation whatsoever, that adds
nothing but demands more requisites
entirely unnecessary, useless and
frustrative of the testator's last will, must
be disregarded.
In the case before us, where ingenuity could
not suggest any possible prejudice to any
person, as attendant upon the actual deviation
from the letter of the law, such deviation must
be considered too trivial to invalidate the
instrument.
It results that the legal errors assigned are not
sustainable, and the judgment appealed from
will be affirmed. It is so ordered, with costs
against the appellants.
46
Page
G.R. No. L-14322 February 25, 1960 haber sido amenazada, forzada o
In the matter of the TESTATE ESTATE OF intimidada, y sin haberse ejercido sobre
PETRONILA TAMPOY, deceased, ella influencia indebida, estando la
vs. misma en pleno uso de sus facultades
DIOSDADA ALBERASTINE, petitioner- mentales y disfrutando de buena salud.
appellant. La testadore fallecio en su case en
Agustin Y. Kintanar for appellant. Argao en 22 de febrero de 1957 (Vease
BAUTISTA ANGELO, J.: certificado de defuncion Exhibito B). La
This concerns the probate of a document heredera instituida en el testamento,
which purports to be the last will and testament Carmen Alberastine, murio dos
of one Petronila Tampoy. After the petition was semanas despues que la testadora, o
published in accordance with law and petitioner sea en 7 de Marzo de 1957, dejando a
had presented oral and documentaryevidence, su madre, la solicitante Diosdada
the trial court denied the petition on the ground Alberastine.
that the left hand margin of the first of the will The above facts are not controverted, there
does not bear the thumbmark of the testatrix. being no opposition to the probate of the will.
Petitioner appealed from this ruling but the However, the trial court denied the petition on
Court of Appeals certified the case to us the ground that the first page of the will does
because it involves purely a question of law. not bear the thumbmark of the testatrix.
The facts of this case as found by the trial court Petitioner now prays that this ruling be set
as follows: aside for the reason that, although the first
De las pruebas resulta que Petronila page of the will does not bear the thumbmark
Tampoy, ya viuda y sin hijos, rogo a of the testatrix, the same however expresses
Bonigfacio Miñoza que la leyera el her true intention to givethe property to her
testamento Exhibito A y la expicara su whose claims remains undisputed. She wishes
contenido en su casa en al calle San to emphasize that no one has filed any to the
Miguel, del municipio de Argao, opposition to the probate of the will and that
provincia de Cebu, en 19 de noviember while the first page does not bear the
de 1939, y lasi lo hizo Bonifacio Miñoza thumbmark of the testatrix, the second
en presencia de los tres testigos however bears her thumbmark and both pages
instrumentales, Rosario K. Chan, were signed by the three testimonial witnesses.
Mauricio de la Peña y Simeon Omboy, y Moreover, despite the fact that the petition for
despues de conformarse con el probate is unoppossed, the three testimonial
contendido del testamento, ella rogo a witnesses testified and manifested to the court
Bonifacio Miñoza, que escribiera su that the document expresses the true and
nombre al pie del testamento, en la voluntary will of the deceased.
pagina segunda, y asi lo hizo Bonifacio This contention cannot be sustained as it runs
Miñoza, y despues ella estampo su counter to the express provision of the law.
marca digital entra su nombre y apelido Thus, Section 618 of Act 190, as amended,
en presencia de todos y cada uno de los requires that the testator sign the will and each
tres testigos instrumentales, Rosario K. and every page thereof in the presence of the
Chan, Mauricio de la Peña y Simeon witnesses, and that the latter sign the will and
Omboy y de Bonifacio Miñoza, y each and every page thereof in the presence of
despues, Bonifacio Miñoza firmo the testator and of each other, which
tambien al pie del todos y cada uno de requirement should be expressed in the
lo tres testigos arriba nombrados. La attestation clause. This requirement is
testadora asi como Bonifacio Miñoza mandatory, for failure to comply with it is fatal
parte de la primera pagina del to the validity of the will (Rodriguez vs. Alcala,
testamento qeu se halla compuesto de 55 Phil., 150). Thus, it has been held that
dos paginas. Todos y cada uno de los "Statutes prescribing the formalities to be
tres testigos instrumentales, Rosario K. observed in the execution of wills are very
Chan, Mauricio de la Peña y Simeon strictly construed. As stated in 40 Cyc., at page
Omboy, firmaron al pie de la clausula de 1097, 'A will must be executed in accordance
atestiguamiento que esta escrita en la with the statutory requirements; otherwise it is
pagina segunda del testamento y en la entirely void.' All these requirements stand as
margen izquierda de la misma pagina 2 of equal importance and must be observed,
y de la pagina primera en presencia de and courts cannot supply the defective
la testadora, de Bonifacio Miñoza, del execution of a will. No power or discretion is
abogado Kintanar y de todos y cada uno vested in them, either to superadd other
47
de ellos. El testamento fue otorgado por conditions or dispence with those enumerated
la testadora libre y expontaneament, sin in the statutes" (Uy Coque vs. Navas L. Sioca,
Page
43 Phil., 405, 407; See also Saño vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho,
50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal
defect that it does not bear the thumbmark of
the testatrix on its first page even if it bears the
signature of the three instrumental witnesses,
we cannot escape the conclusion that the
same fails to comply with the law and
therefore, cannot be admitted to probate.
Wherefore, the order appealed from is
affirmed, without pronouncement as to costs.
48
Page
G.R. No. 17857 June 12, 1922 Gonzalo Abaya, clearly testify that together
In re will of Josefa Zalamea y Abella, with the other witness to the will, Pedro de
deceased. Jesus, they did sign each and every page of
PEDRO UNSON, petitioner-appellee, the will and of the inventory in the presence of
vs. each other and of the testatrix, as the latter did
ANTONIO ABELLA, ET AL., opponents- likewise sign all the pages of the will and of the
appellants. inventory in their presence.
Crispin Oben for appellants. In their brief the appellants intimate that one of
Pedro Guevarra and Carlos Ledesma for the pages of the will was not signed by the
appellee. testatrix, nor by the witnesses on the day of the
VILLAMOR, J.: execution of the will, that is, on the 19th of July,
On July 19, 1918, Doña Josefa Zalamea y 1918, basing their contention on the testimony
Abella, single, 60 years old, who was residing of Aurelio Palileo, who says that on one
in the municipality of Pagsanjan, Province of occasion Gonzalo Abaya told him that one of
Laguna, executed her last will and testament the pages of the will had not been signed by
with an attached inventory of her properties, the witnesses, nor by the testatrix on the day of
Exhibits A and A-1, in the presence of three its execution. Palileo's testimony is entirely
witnesses, who signed with her all the pages of contradicted by Gonzalo Abaya not only in the
said documents. The testatrix died on the 6th direct, but in the rebuttal, evidence as well. To
of January, 1921, and, as the record shows, our mind, Palileo's testimony cannot prevail
the executor appointed in the will, Pedro over that of the attesting witnesses, Gonzalo
Unson, filed in the court of First Instance of Avaya and Eugenio Zalamea. The appellants
Laguna on the 19th of January of the same impeach the credibility of Eugenio Zalamea, for
year an application for the probate of the will having made a sworn declaration before the
and the issuance of the proper letters of justice of the peace of Santa Cruz, Laguna,
administration in his favor. before the trial of this case, to the effect that he
To said application an opposition was presently was really one of the witnesses to the will in
by Antonio Abella, Ignacia Abella, Avicencia question, which fact was corroborated by
Abella, and Santiago Vito, alleging that the himself at the trial. The appellants take
supposed will of the deceased Zalamea was Zalamea's testimony in connection with the
not executed in conformity with the provinces dismissal of a criminal case against a nephew
of the law, inasmuch as it was not paged of his, in whose success he was interested,
correlatively in letters, nor was there any and infer from this fact the partiality of his
attestation clause in it, nor was it signed by the testimony. We deem this allegation of little
testatrix and the witnesses in the presence of importance to impeach the credibility of the
each other. witness Zalamea, especially because his
Trial having been held, the judge a quo testimony is corroborated by the other attesting
overruled the opposition of the contestants, witness. Gonzalo Abaya, and by attorney Luis
and ordered the probate of the will, Exhibit A, Abaya, who had prepared the testament at the
and the inventory, Exhibit A-1, holding that instance of the testatrix. The foregoing is
both documents contained the true and last will sufficient for us to conclude that the first
of the deceased Josefa Zalamea. assignment of error made by the appellants is
From the judgment of the court below, the groundless.
contestants have appealed, and in their brief The appellants contend that the court below
they assign three errors, which, in their opinion, erred in admitting the will to probate
justify the reversal of the judgment appealed notwithstanding the omission of the proponent
from. to produce one of the attesting witnesses.
The first error assigned by the appellants as At the trial of this case the attorneys for the
committed by the court below is its finding to proponent stated to the court that they had
the effect that Exhibit A, said to be the will of necessarily to omit the testimony of Pedro de
the deceased Josefa Zalamea, was executed Jesus, one of the persons who appear to have
with all the solemnities required by the law. witnessed the execution of the will, for there
The arguments advanced by appellants' were reasonable grounds to believe that said
counsel in support of the first assignment of witness was openly hostile to the proponent,
error tend to impeach the credibility of the inasmuch as since the announcement of the
witnesses for the proponent, specially that of trial of the petition for the probate of the will,
Eugenio Zalamea. We have made a careful said witness has been in frequent
examination of the evidence, but have not communication with the contestants and their
found anything that would justify us in attorney, and has refused to hold any
49
disturbing the finding of the courta quo. The conference with the attorneys for the
attesting witnesses, Eugenio Zalamea and proponent. In reply to this, the attorney for the
Page
contestants, said to the court, "without to reverse this case on the ground that
discussing for the present whether or not in the execution of the will had not been
view of those facts (the facts mentioned by the proved by a sufficient number of
attorneys for the petitioner), in the hypothesis attesting witnesses.
that the same are proven, they are relieved It appears, however, that this point was
from producing that witness, for while it is a not raised by the appellant in the lower
matter not decided, it is a recognized rule that court either upon the submission of the
the fact that a witness is hostile does not justify cause for determination in that court or
a party to omit his testimony; without upon the occasion of the filing of the
discussing this, I say, I move that said motion for a new trial. Accordingly it is
statement be stricken out, and if the proponent insisted for the appellee that this
wants these facts to stand to stand in the question cannot now be raised for t he
record, let him prove them." The court a first time in this court. We believe this
quo ruled, saying, "there is no need." point is well taken, and the first
To this ruling of the court, the attorney for the assignment of error must be declared
appellants did not take any exception. not to be well taken. This exact question
In the case of Avera vs. Garcia and has been decided by the Supreme Court
Rodriguez (42 Phil., 145), recently decided by of California adversely to the contention
this court, in deciding the question whether a of the appellant, and we see no reason
will can be admitted to probate, where why the same rule of practice should not
opposition is made, upon the proof of a single be observed by us. (Estate of McCarty,
attesting witness, without producing or 58 Cal., 335, 337.)
accounting for the absence of the other two, it There are at least two reasons why the
was said; "while it is undoubtedly true that an appellate tribunals are disinclined to
uncontested will may be proved by the permit certain questions to be raised for
testimony of only one of the three attesting the first time in the second instance. In
witnesses, nevertheless in Cabang vs. the first place it eliminates the judicial
Delfinado (34 Phil., 291), this court declared criterion of the Court of First Instance
after an elaborate examination of the American upon the point there presented and
and English authorities that when a contest is makes the appellate court in effect a
instituted, all of the attesting witnesses must be court of first instance with reference to
examined, if alive and within reach of the that point, unless the case is remanded
process of the court. for a new trial. In the second place, it
In the present case no explanation was permits, if it does not encourage,
made at the trial as to why all three of attorneys to trifle with the administration
the attesting witnesses were not of justice by concealing from the trial
produced, but the probable reason is court and from their opponent the actual
found in the fact that, although the point upon which reliance is placed,
petition for the probate of this will had while they are engaged in other
been pending from December 21, 1917, discussions more simulated than real.
until the date set for the hearing, which These considerations are, we think,
was April 5, 1919, no formal contest was decisive.
entered until the very day set for the In ruling upon the point above presented
hearing; and it is probable that the we do not wish to be understood as
attorney for the • proponent, believing laying down any hard and fast rule that
in good faith that probate would not be would prove an embarrassment to this
contested, repaired to the court with court in the administration of justice in
only one of the three attesting witnesses the future. In one way or another we are
at hand, and upon finding that the will constantly here considering aspects of
was contested, incautiously permitted cases and applying doctrines which
the case to go to proof without asking have escaped the attention of all
for a postponement of the trial in order persons concerned in the litigation
that he might produce all the attesting below; and this is necessary if this court
witnesses. is to contribute the part due from it in the
Although this circumstance may explain correct decision of the cases brought
why the three witnesses were not before it. What we mean to declare is
produced, it does not in itself supply any that when we believe that substantial
basis for changing the rule expounded justice has been done in the Court of
in the case above referred to; and were First Instance, and the point relied on for
50
it not for a fact now to be mentioned, reversal in this court appears to be one
this court would probably be compelled which ought properly to have been
Page
presented in that court, we will in the In such cases, the will may be admitted to
exercise of a sound discretion ignore probate without the testimony of said witness,
such question upon appeal; and this is if, upon the other proofs adduced in the case,
the more proper when the question the court is satisfied that the will has been duly
relates to a defect which might have executed. Wherefore, we find that the non-
been cured in the Court of First Instance production of the attesting witness, Pedro de
if attention had been called to it there. In Jesus, as accounted for by the attorney for the
the present case, if the appellant had proponent at the trial, does not render void the
raised this question in the lower court, decree of the court a quo, allowing the probate.
either at the hearing or upon a motion But supposing that said witness, when cited,
for a new trial, that court would have had testified adversely to the application, this
had the power, and it would have been would not by itself have change the result
its duty, considering the tardy institution reached by the court a quo, for section 632 of
of the contest, to have granted a new the Code of Civil Procedure provides that a will
trial in order that all the witnesses to the can be admitted to probate, notwithstanding
will might be brought into court. But that one or more witnesses do not remember
instead of thus calling the error to the having attested it, provided the court is
attention of the court and his adversary, satisfied upon the evidence adduced that the
the point is first raised by the appellant will has been executed and signed in the
in this court. We hold that this is too late. manner prescribed by the law.
Properly understood, the case The last error assigned by the appellants is
of Cabang vs. Delfinado, supra, made to consist in the probate of the inventory,
contains nothing inconsistent with the Exhibit A-1, despite the fact that this exhibit
ruling we now make, for it appears from has no attestation clause in it, and its paging is
the opinion in that case that the made in Arabic numerals and not in letters.
proponent of the will had obtained an In the third paragraph of the will, reference is
order for a republication and new trial for made to the inventory, Exhibit A-1, and at the
the avowed purpose of presenting the bottom of said will, the testatrix Josefa
two additional attesting witnesses who Zalamea says:
had not been previously examined, but In witness whereof, I sign this will
nevertheless subsequently failed without composed of ten folios including the
any apparent reason to take their page containing the signatures and the
testimony. Both parties in that case attestation of the witnesses; I have
were therefore fully apprised that the likewise signed the inventory attached to
question of the number of witnesses this will composed of ten folios in the
necessar to prove the will was in issue presence of Messrs. Gonzalo Abaya,
in the lower court. Eugenio Zalamea, Pedro de Jesus, in
In the case at bar, we do not think this question this municipality of Pagsanjan, Laguna,
properly to have been raised at the trial, but in Philippine Islands, this 19th of July,
the memorandum submitted by the attorney for 1918.
the appellants to the trial court, he contended And the attestation clause is as follows:
that the will could not be admitted to probate The foregoing will composed of ten
because one of the witnesses to the will was folios including this one whereunto we
not produced, and that the voluntary non- have affixed our signatures, as well as
production of this witness raises a presumption the inventory of the properties of Doña
against the pretension of the proponent. The Josefa Zalamea y Abella, was read to
trial court found that the evidence introduced Doña Josefa Zalamea y Abella, and the
by the proponent, consisting of the testimony of latter affixed her name to the last, and
the two attesting witnesses and the other each and every page of this will and
witness who was present at the execution, and inventory composed of ten folios in our
had charge of the preparation of the will and presence; and she declared this to be
the inventory, Exhibits A and A-1, was her last will and testament and at her
sufficient. As announced in Cabang vs. request we have affixed hereunto our
Delfinado, supra, the general rule is that, respective signatures in her presence
where opposition is made to the probate of a and in the presence of each other as
will, the attesting witnesses must be produced. witnesses to the will and the inventory
But there are exceptions to this rule, for this 19th of July, 1918, at Pagsanjan,
instance, when a witness is dead, or cannot be Laguna, P.I.
served with process of the court, or his (Sgd.) GONZALO ABAYA,
51
any way, and it was held: "In a will consisting of the margin of each page containing
two sheets the first of which contains all the written matter."
Page
We do not desire to intimate that the
numbering in letters is a requisite of no
importance. But since its principal object is to
give the correlation of the pages, we hold that
his object may be attained by writing one, two,
three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should
not be applied where the paging is in Arabic
numerals, instead of in letters, as in the
inventory in question. So that, adhering to the
view taken by this court in the case of Abangan
vs. Abangan, and followed in Aldava vs.
Roque, with regard to the appreciation of the
solemnities of a will, we find that the judgement
appealed from should be, as is hereby,
affirmed with the costs against the appellants.
So ordered.
53
Page
G.R. No. L-17304 May 22, 1922 thumb mark of my right hand in the
In re will of Maria Roque y Paraiso, presence of the subscribing witnesses,
deceased. and that all the witnesses have signed in
CEFERINO ALDABA, petitioner-appellee, my presence and of each other here at
vs. Malolos, Bulacan, this 9th day of the
LUDOVICO ROQUE, opponent-appellant. month of July, 1918; and I also declare
Lucero and Tengo for appellant. that at my request Don Vicente Platon
Vicente Platon for appellee. has written my name on the left margin
VILLAMOR, J.: of all pages of this testament, in the
It appears from the record of the case that on presence of the witnesses, and all the
July 9, 1918, Maria Roque y Paraiso, the witnesses have also signed all the
widow of Bruno Valenzuela, resident of the pages of this testament on the left
barrio of Mambog, municipality of Malolos, margin in my presence and that of each
Province of Bulacan, executed her last will and other.
testament in the Tagalog dialect with the help X (Her thumb mark)
of Vicente Platon and in the presence of three MARIA ROQUE Y PARAISO,
witnesses who signed the attestation clause Per VICENTE PLATON.
and each of the four pages of the testament. (Sgd.) REGINO E. MENDOZA,
Maria Roque died on December 3, 1919, and Witness.
when her will was filed in court for probate, it (Sgd.) IGNACIO ANIAG,
was contested by Ludovico Roque on the Witness.
ground that it had not been prepared nor (Sgd.) CEFERINO ALDABA.
executed in conformity with the requirements Witness.
and solemnities prescribed by law. In reality, it appears that it is the testatrix who
After due proceedings had been had, the Court makes the declaration about the points
of First Instance of Bulacan by its decision contained in the above described paragraph;
rendered on February 27th of the following however, as the witnesses, together with the
year, pronounced the testament in question testatrix, have signed the said declaration, we
valid, and ordered its probate, appointing are of the opinion and so hold that the words
Ceferino Aldaba as the administrator of the above quoted of the testament constitute a
estate. sufficient compliance with the requirements of
The errors assigned by the appellant are two, section 1 of Act No. 2645 which provides that:
to wit: "That each and every folio of the said The attestation shall state the number of
testament is not paged correlatively in letter," sheets or pages used, upon which the
and "that the said will lacks the attestation will is written, and the fact that the
clause required by law." testator signed the will and every page
We have examined document Exhibit 4 which thereof, or caused some other person to
is the will in question and we find at the end write his name, under his express
thereof the following in Tagalog which direction, in the presence of three
translated into English reads: witnesses, and the latter witnessed and
This document expresses my last and signed the will and all the pages thereof
spontaneous will, and is my last will and in the presence of the testator and of
testament, which was drawn by the each other.
lawyer, Don Vicente Platon, at my In regard to the other assignment of error, to
direction, and everything contained in wit, that each of the folios of the said testament
this testament has been ordained and is not paged correlatively in letters "one." "two,"
directed by me to said Vicente Platon in "three," etc., but only with the letters A, B, C,
order that it might be embodied in this etc., we are of the opinion that this method of
testament, and after this testament has indicating the paging of the testament is a
been drawn up, I directed him to read it compliance with the spirit of the law, since
so that I might hear all its contents, and I either one of the two ways above-mentioned
have heard and understood all the indicates the correlation of the pages and
contents of this document which is my serves to prevent the loss of any of them. It
last will, wherefore, and not knowing might be said that the object of the law in
how to write, I have requested Don requiring that the paging be made in letters is
Vicente Platon to write and sign my to make falsification more difficult, but it should
name in my stead hereon; I declare that be noted that since all the pages of the
this testament is composed of four testament are signed at the margin by the
sheets, actually used, that the sheets testatrix and the witnesses, the difficulty of
54
are paged with the letter A, B, C, and d, forging the signatures in either case remains
and above my name I have placed the the same. In other words the more or less
Page
degree of facility to imitate the writing of the of each and every page; and it is
letters A, B, C, etc., does not make for the undeniable that the general doctrine is
easiness to forge the signature. And as in the to the effect that all statutory
present case there exists the guaranty of the requirements as to the execution of wills
authenticity of the testament, consisting in the must be fully complied with. The same
signatures on the left marging of the testament doctrine is also deducible from cases
and the paging thereof as declared in the heretofore decided by this court
attestation clause, the holding of this court in Still some details at times creep into
Abangan vs. Abangan (40 Phil, 476), might as legislative enactments which are so
well be repeated: trivial that it would be absurd to suppose
The object of the solemnities that the Legislature could have attached
surrounding the execution of wills is to any decisive importance to them. The
close the door against bad faith and provision to the effect that the
fraud, to avoid substitution of wills and signatures of the testator and witnesses
testaments and to guarantee their truth shall be written on the left margin of
and authenticity. Therefore the laws on each page — rather than on the right
this subject should be interpreted in margin — seems to be of this character.
such a way as to attain these primordial So far as concerns the authentication of
ends. But, on the other hand, also one the will, and of every part thereof, it can
must not lose sight of the fact that it is make no possible different whether the
not the object of the law to restrain and names appear on the left or on the right
curtail the exercise of the right to make margin, provided they are on one or the
a will. So when an interpretation already other. In Caraig vs. Tatlonghari (R. G.
given assures such ends, any other No. 12558, decided March 23, 1918, not
interpretation whatsoever, that adds reported), this court declared a will void
nothing but demands more requisites which was totally lacking in the
entirely unnecesary, useless, and signatures required to be written on its
frustrative of the testator's last will, must several pages; and in the case of Re
be disregarded. estate of Saguinsin (41 Phil., 875), a will
In that case the testament was written on one was likewise declared void which
page, and the attestation clause on another. contained the necessary signature on
Neither one of these pages was numbered in the margin of each left (folio), but not on
any way; and it was held: the margin of each page containing
In a will consisting of two sheets the first written matter.
of which contains all the testamentary We do not desire to intimate that the
dispositions and is signed at the bottom numbering in letters is a requisite of no
by the testator and three witnesses and importance. But since its principal object is to
the second contains only the attestation give the correlation of the pages, we hold that
clause and is signed also at the bottom this object may be attained by writing "one."
by the three witnesses, it is not "two," "three," etc., well as by writing A, B, C,
necessary that both sheets be further etc. Following, therefore, the view maintained
signed on their margings by the testator by this court in the case ofAbangan vs.
and the witnesses, or be paged. Abangan, supra, as regards the appreciation of
This means that, according to the particular the solemnities of a testament, we decide that
case, the omission of paging does not the judgment appealed from must be, as is
necessarily render the testament invalid. hereby, affirmed with costs against the
The law provides that the numbering of the appellant. So ordered.
pages should be in letters placed on the upper
part of the sheet, but if the paging should be
place din the lower part, would the testament
be void for his sole reason? We believe not.
The law also provides that the testator and the
witnesses must sign the left margin of each of
the sheets of the testament; but if they should
sign on the right margin, would this fact also
annul the testament? Evidently not. This court
has already held in Avera vs. Garcia and
Rodriguez (42 Phil., 145):lävvphì1·né+
It is true that the statute says that the
55
Chambers of the Court of First Instance of Hospital of Cebu, where he died. Being based
Cebu. The first was promoted in Room III; and the Court on these facts proved at trial, I stated
Page
"; and the fact that, at the bottom of the second present no data already mentioned and there
page, there is this other note: "Go to the 3rd is also the record inserted into the first two
Page
lines of the third page of the exhibits A and C,
that they are composed of three pages, and
contain two sixteen articles and provisions.
They are therefore perfect application to
the case that is what we said in the causes of
Rodriguez against Yap, RG No. 45924, May
18, 1939; and Fortunate against De Gorostiza
(57 Phil. Rep., 456). We said in these causes,
respectively, the following:
The wording of the clause Witnessing
this will not technically free repairs, but
is essentially a law enforcement.
We maintain the view that should be
required strict compliance with the
substantive requirements of the will, to
ensure its authenticity, but at the same
time we believe that they should not be
considered defects that can not affect
this end and, on the other part , be
taken into account, could thwart the will
of the
testator.(Rodriguez against Yap, supra .
)
It should not be allowed to legal
formalities hinder the use of good
common sense in considering wills and
frustrate the wishes of the deceased
solemnly expressed in their wills,
regarding the granting of which there is
not even the shadow of bad faith or
fraud. (Fortunate against De
Gorostiza, supra .)
For these reasons, finding appealed according
to law the decision of the Court of First
Instance of Cebu, hereby confirm it,
condemned the appellants to pay the costs. So
it is ordered.
59
Page
G.R. No. L-21151 February 25, 1924 testator signed the will in the presence of the
In re will of Antonio Vergel de Dios, three witnesses and that the latter, in turn,
deceased. signed it in the presence of the testator and of
RAMON J. FERNANDEZ, petitioner-appellant, each other, the testator knowing that the
HERMELO VERGEL DE DIOS and witnesses were signing his will; that the
SEVERINA JAVIER, legatees-appellants, witnesses signed the attestation clause before
vs. the death of the testator; that this clause, with
FERNANDO VERGEL DE DIOS, ET the names of the witnesses in blank, was
AL., opponents-appellees. prepared before the testator signed the will,
and that the sheet containing said clause, just
ROMUALDEZ, J.: as those of the will proper, was a loose sheet,
and that all the four sheets of which the will
The question in this case is as to the validity of Exhibit A was actually composed were kept
the document Exhibit A as a will, which was together and are the very ones presented in
propounded by Ramon J. Fernandez for this case; and finally, that the signatures of the
probate, and contested by Fernando Vergel de testator on page 3 of said exhibit are authentic.
Dios and Francisco, Ricardo and Virgilio It thus appearing from the record that there are
Rustia, the court of First Instance of Manila no such defects as those mentioned by the
having denied its probate. opponents, and it having been proven that the
The applicant takes this appeal, assigning error testator executed said will in a language known
to the action of the lower court in holding the by him and consciously, freely and
attestation fatally defective and in not finding spontaneously, it would seen unnecessary to
Act No. 2645 void. go further, and the matter might be brought to
The defects attributed to the will by the a close right here, by holding the will in
contestants are as follows, to wit: question valid and allowable to probate, were it
(a) It was not sufficiently proven that the not for the fact that the trial court and the
testator knew the contents of the will. opponents questioned the sufficiency and
(b) The testator did not sign all the validity of the attestation clause because the
pages of the will. sheet on which it is written is not numbered,
(c) He did not request anybody to attest and it is not stated there that the testator
the document as his last will. signed on the margin of each sheet of the will
(d) He did not sign it in the presence of in the presence of the three witnesses, or that
any witness. the latter signed it is the presence of the
(e) The witnesses did not sign it in the testator and of each other, and specially
presence of the testator, or of each because said attestation clause is not signed
other, nor with knowledge on the part of by the testator either at the margin or the
the testator that they were signing his bottom thereof.
will. As to the numbering of the sheet containing the
(f ) The witnesses did not sign the attestation clause, it is true that it does not
attestation clause before the death of appeal on the upper part of the sheet, but it
the testator. does not appear in its text, the pertinent part of
(g) This clause was written after the which is copied hereinafter, with the words,
execution of the dispositive part of the having reference to the number of sheets of
will and was attached to the will after the the will, underscored, including the page
death of the testator. number of the attestation:
(h) The signatures of the testator on * * * We certify that the foregoing
page 3 of Exhibit A are not authentic. document written in Spanish, a
The evidence sufficiently shows that when language known by the testator
Attorney Lopez Lizo read the will to the Antonino Vergel de Dios, consisting
testator, the latter's mind was perfectly sane of three sheet actually used,
and he understood it: that he signed all the correlatively enumerated, besides this
pages of the will proper, although he did not sheet . . . .
sign the page containing the attestation clause; If, as stated in this clause, the foregoing
that while he did not personally call the document consists of three sheets, besides
witnesses, yet the latter were invited by that of the clause itself, which is in singular, it is
Attorney Lopez Lizo to act as such in his clear that such a sheet of the attestation clause
presence. The law does not require that the is the fourth and that the will, including said
testator precisely be the person to request the sheet, has four sheets. This description
witnesses to attest his will. It was also contained in the clause in question constitutes
60
sufficiently established in the record, beside substantial compliance with the requirements
being stated in the attestation clause, that the prescribed by the law regarding the paging. So
Page
it was held by this Court in the case ofAbangan theory is not announced that such a clause is
vs. Abangan (40 Phil., 476), where the sheet unnecessary to the validity to the will.
containing the attestation, as well as the For this reason such doctrine does not annul
preceding one, was also not paged. the judgment in the case of Uy Coque vs.
Furthermore the law, as we shall see later on, Navas L. Sioca (43 Phil., 405), where in effect
does not require that the sheet containing the doctrine, among others, was laid down that
nothing but the attestation clause, wholly or in the attestation clause is necessary to the
part, be numbered or paged. Consequently this validity of the will. One of the points on which
lack of paging on the attestation sheet does not greatest stress was laid in that case Uy Coque
take anything from the validity of the will. is that the requirements of the law regarding
Turning now to the question whether or not in the number of the pages used, the signing of
this clause it is stated that the testator signed the will and of each of its pages by the testator
on the margin of each sheet of the will, in the in the presence of three witnesses, and the
presence of the witnesses and the latter in the attestation and signing of the will and of each
presence of each other, let us see what is said of its pages by the witnesses in the presence
in said clause on this point, and to this end its of each other cannot be proven aliunde but by
pertinent part is hereinafter transcribed and is the attestation clause itself which must express
as follows: the complaince of the will with such
* * * and he (the testator) signed at the requirements. But it was not held in that case
bottom of the aforesaid will in our of Uy Coque that the signature of the testator
presence and we at his request did the was necessary in the attestation clause, nor
same in his presence and in that of each was such point discussed there, which was the
other as witnesses to the will, and lastly, point at issue in the case of Abangan vs.
the testator, as well as we, as Abangan, supra.
witnesses, signed in the same The appellees, however, argue that such
manner on the left margin of each sheet. clause in the case of Abangan vs.
(Emphasis ours.) Abangan begins at the bottom and on the
The underscored phrase "in the same manner" same sheet in which the testamentary
cannot in the instant case mean, and it in fact provision terminated, that is to say, the will
means nothing, but that the testator and the properly speaking. Even then if it is intended to
witnesses signed on the left margin of each commit misrepresentation or fraud, which are
sheet of the will "in the same manner" in which the things that with the requirements of the law
they signed at the bottom thereof, that is, the for the making and attesting of wills it is
testator in the presence of the witnesses and intended to avoid, it is just the same that the
the latter in the presence of the testator and of clause; as in the case ofAbangan vs. Abangan,
each other. This phrase in the same begins at the bottom of the will properly
manner cannot, in view of the context of the speaking, as, like the case before us, it is
pertinent part, refer to another thing, and was wholly contained in a separate sheet. The fact
used here as a suppletory phrase to include is that this separate sheet, containing the
everything and avoid the repetition of a long attestation clause wholly or in part, is not
and difficult one, such as what is meant by it. signed any place by the testator in the case
The same section 618 of the Code of Civil of Abangan vs. Abangan, as it is not in the
Procedure, in order to avoid the repetition of present case.
the same long phrase about the testator having Section 618 of the code of Civil Procedure, as
signed in the presence of the witnesses and amended by Act No. 2645, contains three
the latter in the presence of each other, resorts paragraphs, of which the first enumerates in
to a similar expression in the second general terms the requirements to be met by a
paragraph and says, "as aforesaid." will executed after said Code took effect, to wit,
Concerning the absolute absence of the that the language or dialect in which it is written
signature of the testator from the sheet be known by the testator, that it be signed by
containing the attestation clause, this point was the latter or by another person in the name of
already decided in the above cited case the testator by his express direction and in his
of Abangan vs. Abangan, where this court held presence, and that it be attested and signed by
that: three or more credible witnesses in the
The testator's signature is not necessary presence of the testator and of each other.
in the attestation clause because this, These general rules are amplified in the next
as its name implies, appertains only to two paragraphs as to the special requirements
the witnesses and not to the testator. for the execution of the will by the testator and
In that case of Abangan vs. Abangan it was the signing thereof by the witnesses, with
61
held that the signature of the testator is not which the second paragraph of the section
necessary in the attestation clause, but the deals, and as to the attestation clause treated
Page
in the third and last paragraph of said section such a way that the possibility of fraud,
618. deceit or suppression of the will or the
For this reason the second paragraph of this attestation clause be reduced to a
section 618 says: minimum; which possibility always
The testator or the person requested by exists, as experience shows, in spite of
him to write his name and the the many precautions taken by the
instrumental witnesses of the will, shall legislator to insure the true and free
also sign, as aforesaid, each and every expression of one's last will.
page thereof, on the left margin, and Second. That the will is distinct and
said pages shall be numbered different from the attestation, although
correlatively in letters placed on the both are necessary to the validity of the
upper part of each sheet. will, similar, in our opinion, to
These are the solemnities that must surround a document which is not public so long
the execution of the will properly speaking, as it is not acknowledged before a
without any reference whatsoever to the notary, the document being a distinct
attestation clause not treated in this second and different thing from the
paragraph. It is in this second paragraph which acknowledgment, each of which must
deals only with the will (without including the comply with different requisites, among
attestation clause), that the signature or name which is the signature of the maker
of the testator and those of the witnesses are which is necessary in the document but
mentioned as necessary on the left margin of not in the acknowledgment and both
each and everyone of the sheets of the will (not things being necessary to the existence
of the attestation clause), as well as the paging of the public document.
of said sheet (of the will, and not of the Third. That the will proper must meet the
attestation clause which is not yet spoken of). requirements enumerated in the second
Now, are the signatures of the testator and the paragraph of section 618 of the Code of
paging of the will also necessary in the Civil Procedure.
attestation clause? Let us see the last Fourth. That the text of the attestation
paragraph of this section 618 of the Code clause must express compliance with
which already deals with the requirements for the requirements prescribed for the will.
the attestation clause. This last paragraph In the case at bar the attestation clause in
reads thus: question states that the requirements
The attestation shall state the number of prescribed for the will were complied with, and
sheets or pages used, upon which the this is enough for it, as such attestation clause,
will is written, and the fact that the to be held as meeting the requirements
testator signed the will and every page prescribed by the law for it.
thereof, or caused some other person to The fact that in said clause the signature of the
write his name, under his express testator does not appear does not affect its
direction, in the presence of three validity, for, as above stated, the law does not
witnesses, and the latter witnessed and require that it be signed by the testator.
signed the will and all pages thereof in We find no merit in the assignment of error
the presence of the testator and of each raising the question as to the validity of Act No.
other. 2645, which is valid. For the purposes of this
As may be seen this last paragraph refers to decision, it is not necessary to reason out this
the contents of the text of the attestation, not conclusion, it being sufficient for the
the requirements or signatures thereof outside adjudication of this case to hold the first error
of its text. It does not require that the assigned by the appellants to have been
attestation be signed by the testator or that the demonstrated.
page or sheet containing it be numbered. The foregoing conclusions lead us to hold, as
From this analysis of our law now in force it we do here by hold, that the documents Exhibit
appears: A, as the last will and testament of the
First. That the will must have an deceased Antonio Vergel de Dios, meets all
attestation clause as a complement, the requirements prescribed by the low now in
without which it cannot be probate and force and therefore it must be allowed to
with which only not aliunde (Uy probate as prayed for by the petitioner.
Coque vs. Navas L. Sioca , supra) may The judgment appealed from is reversed, and it
the requirements to be stated in its text is ordered that the lower court proceed with the
be proven. The attestation clause must probate of the will Exhibit A in accordance with
be prepared and signed, as in the law, without express pronouncement as to
62
clearly identified as the first page by the statute requiring a will to be "signed" is
internal sense of its contents considered in satisfied if the signature is made by the
Page
testator's mark. (De Gala vs. Gonzales and the subject other than the fact that the testator
Ona, 53 Phil., 108; 28 R. C. L., 117.) resided in a Tagalog region, from which the
With reference to the second assignment of court said "a presumption arises that said
error, we do not share the opinion that the trial Maria Tapia knew the Tagalog dialect.
court communicated an abuse of discretion in The order of the lower court ordering the
allowing the appellant to offer evidence to probate of the last will and testament of Don
prove knowledge of Spanish by the testator, Sixto Lopez is affirmed, with costs.
the language in which the will is drawn, after
the petitioner had rested his case and after the
opponent had moved for dismissal of the
petition on the ground of insufficiency of
evidence. It is within the discretion of the court
whether or not to admit further evidence after
the party offering the evidence has rested, and
this discretion will not be reviewed except
where it has clearly been abused. (64 C. J.,
160.) More, it is within the sound discretion of
the court whether or not it will allow the case
to be reopened for the further introduction of
evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the
case may be reopened after the court has
announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it
or has denied the same, or after the motion
has been granted, if the order has not been
written, or entered upon the minutes or signed.
(64 C. J., 164.)
In this jurisdiction this rule has been followed.
After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling
will not be disturbed in the appellate court
where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second assignment of
error, the appellant impugns the will for its
silence on the testator's understanding of the
language used in the testament. There is no
statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel,
46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did
64
earlier will executed by the same testatrix and instrument has been executed before them,
her deceased husband. The lower court and the manner of the execution of the same."
Page
(Black, Law Dictionary.) It is signed not by the said clause, was to exclude evidence aliunde,
testator but by the witnesses, for it is a and that where such evidence was admitted
declaration made by the witnesses and not by without opposition, it should not be given effect
the testator. And the law is clear that it is the and thus defeat the manifest intention of the
attestation clause that must contain a legislature in amending said section 618.
statement, among others, that the testator
signed the will in the presence of the "Section 618 of Act No. 190, as amended,
witnesses. Without that statement, the should be given a strict interpretation. In the
attestation clause is fatally defective. case of Uy Coque v. Navas L. Sioca (43 Phil.,
405) this court, speaking of the construction to
This defect is not cured by proof aliunde or be given to said section,
even by a judicial finding based upon such said:jgc:chanrobles.com.ph
proof that the testator did in fact sign the will in
the presence of the subscribing witnesses. "Statutes prescribing the formalities to be
That is a fact required by law to be stated in observed in the execution of wills are very
the attestation clause itself, and it is settled that strictly construed. As stated in 40 Cyc., at page
where it is not so stated it cannot be 1097, ’A will must be executed in accordance
established by evidence aliunde, and that with the statutory requirements; otherwise it is
where such evidence has been admitted, even entirely void. All these requirements stand as
without opposition, it should not be given the of equal importance and must be observed,
effect intended. (Uy Coque v. Navas L. Sioca, and courts cannot supply the defective
43 Phil., 405; Quinto v. Morata, 54 Phil., 481.) execution of a will. No power or discretion is
In the case last cited this Court had the vested in them, either to superadd other
following to say:jgc:chanrobles.com.ph conditions or dispense with those enumerated
in the statutes.’" (Uy Coque v. Navas L. Sioca,
"It is vigorously contended on behalf of the 43 Phil., 405, 407.)
appellant, that the alleged defect of the
attestation clause 1 has been cured by oral It is also urged that the lower court should not
evidence, which was admitted without have entertained the opposition of Rosa Abaja,
opposition on the part of the appellee. This who had no legal interest in the proceeding.
contention cannot be sustained. The doctrine But it does not appear that timely objection to
of this court with reference to statute of frauds the said opposition was made in the court
is not applicable to wills. The statute of frauds below, and it is settled that the mere fact that a
relates to contracts and agreements. The stranger has been permitted to oppose the
subject of wills and testaments and the allowance of a will is not a reversible error and
formalities surrounding their execution are does not invalidate the proceedings where no
governed by separate and specific provisions objection is interposed by any of the parties in
of Act No. 190. interest. (Paras v. Narciso, 35 Phil., 244.) It is
true that in the course of Rosa Abaja’s
"An examination of section 618 of Act No. 190, declaration, counsel for appellant made some
prior to, and after its amendment by Act No. manifestation tending to question the
2645, shows clearly that the legislature admissibility of her testimony. But it is not clear
intended to exclude evidence aliunde tending that the remark was meant to be an objection
to establish that the will has been executed to the opposition itself. And in any event, even
and attested in conformity with the without opposition, the lower court could not
requirements of the law, where such have legally allowed the will in question, for
compliance does not appear on the face of the under section 618 of Act No. 190, as amended
will itself. Prior to its amendments, section 618 by Act No. 2645, no will shall be valid to pass
contained the following saving clause: ’But the any estate, real or personal, nor charge or
absence of such form of attestation shall not affect the same unless the attestation clause
render the will invalid if it as proven that the will conforms to the requirements therein provided,
was in fact signed and attested as in this and the imperative language of the Rules of
section provided.’ Court (Rule 77, section 9 [a]) directs that the
will "shall be disallowed" if not executed and
"The most outstanding feature of the "attested as required by law."cralaw virtua1aw
amendment of said section 618 by Act No. library
2645 is the elimination of said saving clause
and the greater emphasis laid on the In view of the foregoing, the order appealed
formalities as to signatures and the attestation from is affirmed, with costs against
66
exigido por la ley, de que en ella se legal thought, a situation which perhaps has
haga constar que el testador y los brought about a certain degree of confusion in
Page
this field. It is also fairness to avow, however, safeguard it. This purpose was indicated when
that a more careful examination of the cases our legislature provided for the exclusion of
will show that, while the two tendencies evidence aliunde to prove the execution of the
mentioned in easily discernible, the conflict in will. We should not, however, attribute the
many cases is more apparent than real, and prohibition as indicative of a desire to impose
the variance, if at all, in the application of the unreasonable restraint or beyond what reason
principles involved was due in some instances and justice permit. It could not have been the
to the marked differentiation of facts and the intention of the legislature in providing for the
consequent personal or collective criteria in essential safeguards in the execution of a will
particular cases.lâwphi1.nêt to shackle the very right of testamentary
We have taken pains to examine the numerous disposition which the law recognizes and holds
cases relied upon by the petitioner and those sacred. The pronouncement of this Court
relied upon by the respondent, and while we do in Abangan vs. Abangan (40 Phil., 476, 479),
not deem it necessary to make a detailed expresses the sound rule to which we have
comparison between them, we find no difficulty recently adhered in principle.
in selecting what we consider is the reasonable (Rodriguez vs. Yap, G.R. No. 45924,
rule to apply in this case at bar. It is, of course, promulgated May 18, 1939; and
not possible to lay down a general rule, rigid Grey vs. Fabie, G.R. No. 45160, promulgated
and inflexible, which would be applicable to all May 23, 1939):
cases. More than anything else, the facts and The object of the solemnities
circumstances of record are to be considered surrounding the execution of wills is to
in the application of any given rule. If the close the door against bad faith and
surrounding circumstances point to a regular fraud, to avoid substitution of wills and
execution of the will, and the instrument testaments and to guaranty their truth
appears to have been executed substantially in and authenticity. Therefore the laws on
accordance with the requirements of the law, this subject should be interpreted in
the inclination should, in the absence of any such a way as to attain these primordial
suggestion of bad faith, forgery or fraud, lean ends. But, on the other hand, also one
towards its admission to probate, although the must not lose sight of the fact that it is
document may suffer from some imperfection not the object of the law to restrain and
of language, or other non-essential defect. curtail the exercise of the right to make
This, in our opinion, is the situation in the a will. So when an interpretation already
present case, and we, therefore, hold that the given assures such ends, any other
requirement that the attestation clause, among interpretation whatsoever, that adds
other things, shall state "that the testator nothing but demands more requisites
signed the will and every page thereof in the entirely unnecessary, useless and
presence of three witnesses, and that the frustrative of the testator's last will, must
witnesses signed the will in the presence of the be disregarded.
testator and of each other," is sufficiently It follows that the writ of certiorari should be, as
complied with, it appearing that the testator it is hereby, granted and the judgment of the
and the witnesses signed each and every page Court of Appeals reversed, with the result that
of the will according to the stipulation of the the controverted will, Exhibit A, of the
parties. (Record on Appeal, stipulation, pp. 10, deceased Valerio Leynez, shall be admitted to
14, 15); and this fact being shown in the will probate. So ordered, with costs against the
itself, and there being, furthermore, no respondent-appellee. So ordered.
question raised as to the authenticity of the
signature of the testator and the witnesses.
An attestation clause is made for the purpose
of preserving, in permanent form, a record of
the facts attending the execution of the will, so
that in case of failure of the memory of the
subscribing witnesses, or other casualty, they
may still be proved. (Thompson on Wills, 2 ed.,
sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the
purpose of the law. The law-making body, in
recognition of the dangers to which
testamentary dispositions are apt to be subject
in the hands of unscrupulous individuals, has
68
taken as a result of the disallowance of the will. write his name, under his express
He also asked that the ten-day period required direction, in the presence of the
Page
instrumental witnesses, and that which fully satisfies the purpose of
the lacier witnesses and signed Identification.
the will and the pages thereof in The signatures of the instrumental witnesses
the presence of the testator and on the left margin of the first page of the will
of one another. attested not only to the genuineness of the
If the attestation clause is in a signature of the testatrix but also the due
language not known to the execution of the will as embodied in the
witnesses, it shall be interpreted attestation clause.
to the witnesses, it shall be While perfection in the drafting of a will may be
interpreted to them. desirable, unsubstantial departure from the
The respondent Judge interprets the above- usual forms should be ignored, especially
quoted provision of law to require that, for a where the authenticity of the will is not
notarial will to be valid, it is not enough that assailed. (Gonzales v. Gonzales, 90 Phil. 444,
only the testatrix signs at the "end" but an the 449).
three subscribing witnesses must also sign at The law is to be liberally construed, "the
the same place or at the end, in the presence underlying and fundamental objective
of the testatrix and of one another because the permeating the provisions on the law on wills in
attesting witnesses to a will attest not merely this project consists in the liberalization of the
the will itself but also the signature of the manner of their execution with the end in view
testator. It is not sufficient compliance to sign of giving the testator more freedom in
the page, where the end of the will is found, at expressing his last wishes but with sufficient
the left hand margin of that page. safeguards and restrictions to prevent the
On the other hand, the petitioner maintains that commission of fraud and the exercise of undue
Article 805 of the Civil Code does not make it a and improper pressure and influence upon the
condition precedent or a matter of absolute testator. This objective is in accord with the
necessity for the extrinsic validity of the wig modern tendency in respect to the formalities
that the signatures of the subscribing in the execution of a will" (Report of the Code
witnesses should be specifically located at the commission, p. 103).
end of the wig after the signature of the Parenthetically, Judge Ramon C. Pamatian
testatrix. He contends that it would be absurd stated in his questioned order that were not for
that the legislature intended to place so heavy the defect in the place of signatures of the
an import on the space or particular location witnesses, he would have found the testimony
where the signatures are to be found as long sufficient to establish the validity of the will.
as this space or particular location wherein the The objects of attestation and of subscription
signatures are found is consistent with good were fully met and satisfied in the present case
faith and the honest frailties of human nature. when the instrumental witnesses signed at the
We find the petition meritorious. left margin of the sole page which contains all
Undoubtedly, under Article 805 of the Civil the testamentary dispositions, especially so
Code, the will must be subscribed or signed at when the will was properly Identified by
its end by the testator himself or by the subscribing witness Vicente Timkang to be the
testator's name written by another person in his same will executed by the testatrix. There was
presence, and by his express direction, and no question of fraud or substitution behind the
attested and subscribed by three or more questioned order.
credible witnesses in the presence of the We have examined the will in question and
testator and of one another. noticed that the attestation clause failed to
It must be noted that the law uses the state the number of pages used in writing the
terms attested and subscribed Attestation will. This would have been a fatal defect were it
consists in witnessing the testator's execution not for the fact that, in this case, it is
of the will in order to see and take note discernible from the entire wig that it is really
mentally that those things are, done which the and actually composed of only two pages duly
statute requires for the execution of a will and signed by the testatrix and her instrumental
that the signature of the testator exists as a witnesses. As earlier stated, the first page
fact. On the other hand, subscription is the which contains the entirety of the testamentary
signing of the witnesses' names upon the same dispositions is signed by the testatrix at the end
paper for the purpose of Identification of such or at the bottom while the instrumental
paper as the will which was executed by the witnesses signed at the left margin. The other
testator. (Ragsdale v. Hill, 269 SW 2d 911). page which is marked as "Pagina dos"
Insofar as the requirement of subscription is comprises the attestation clause and the
concerned, it is our considered view that the acknowledgment. The acknowledgment itself
70
will in this case was subscribed in a manner states that "This Last Will and Testament
consists of two pages including this page".
Page
In Singson v. Florentino, et al. (92 Phil. 161, bearing the coincident imprint of
164), this Court made the following the seal of the notary public
observations with respect to the purpose of the before whom the testament was
requirement that the attestation clause must ratified by testatrix and all three
state the number of pages used: witnesses. The law should not be
The law referred to is article 618 so strictly and literally interpreted
of the Code of Civil Procedure, as as to penalize the testatrix on
amended by Act No. 2645, which account of the inadvertence of a
requires that the attestation single witness over whose
clause shall state the number of conduct she had no control
pages or sheets upon which the where the purpose of the law to
win is written, which requirement guarantee the Identity of the
has been held to be mandatory testament and its component
as an effective safeguard against pages is sufficiently attained, no
the possibility of interpolation or intentional or deliberate deviation
omission of some of the pages of existed, and the evidence on
the will to the prejudice of the record attests to the fun
heirs to whom the property is observance of the statutory
intended to be bequeathed (In re requisites. Otherwise, as stated
will of Andrada, 42 Phil., 180; Uy in Vda. de Gil. Vs. Murciano, 49
Coque vs. Navas L. Sioca, 43 Off. Gaz. 1459, at 1479 (decision
Phil. 405; Gumban vs. Gorecho, on reconsideration) 'witnesses
50 Phil. 30; Quinto vs. Morata, 54 may sabotage the will by
Phil. 481; Echevarria vs. muddling or bungling it or the
Sarmiento, 66 Phil. 611). attestation clause.
The ratio decidendi of these WHEREFORE, the present petition is hereby
cases seems to be that the granted. The orders of the respondent court
attestation clause must contain a which denied the probate of tile will, the motion
statement of the number of for reconsideration of the denial of probate,
sheets or pages composing the and the motion for appointment of a special
will and that if this is missing or is administrator are set aside. The respondent
omitted, it will have the effect of court is ordered to allow the probate of the wig
invalidating the will if the and to conduct further proceedings in
deficiency cannot be supplied, accordance with this decision. No
not by evidence aliunde, but by a pronouncement on costs.
consideration or examination of SO ORDERED.
the will itself. But here the
situation is different. While the
attestation clause does not state
the number of sheets or pages
upon which the will is written,
however, the last part of the body
of the will contains a statement
that it is composed of eight
pages, which circumstance in our
opinion takes this case out of the
rigid rule of construction and
places it within the realm of
similar cases where a broad and
more liberal view has been
adopted to prevent the will of the
testator from being defeated by
purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has
the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of
this page is assured not only (sic)
the fact that the testatrix and two
71
signed the will and all pages thereof in defeated through non-observance of the
statue.
Page
The purpose of the Legislature in prescribing testator and the witnesses signed in the
the rather strict formalities now required in the presence of each other and that the fact cannot
execution of a will are clearly revealed by be proved by evidence aliunde is, perhaps,
comparing section 618, supra, as originally less obvious, but, in view of the well-known
enacted with the amended section quoted unreliability of oral evidence, it is clear that a
above. The original section reads: statement in the attestation clause will afford
No will, except as provided in the more satisfatory evidence of the fact to be
preceding section, shall be valid to pass proven. In any event, the fact that the old rule
any estate, real or personal, nor charge in regard to admissibility or oral evidence to
or affect the same, unless it be in writing prove that the testator and witnesses signed in
and signed by the testator, or by the the manner prescribed by the law evidently had
testator's name written by some other been found unsatisfactory and was deliberately
person in his presence, and by his varied by amendment shows that the
express direction, and attested and Legislature attached importance to the mater. If
subscribed by three or more credible so, the courts will not be justified in enervating
witnesses in the presence of the testator the amendment by too liberal a construction.
and of each other. The attestation shall We therefore hold that the two defects noted in
state the fact that the testator signed the the attestation clause of the alleged will
will, or caused it to be signed by some renders it null and void and that it cannot be
other person, at this express direction, admitted to probate. The order appealed from
in the presence of three witnesses, and is reversed with the costs against the appellee.
that they attested and subscribed it is So ordered.
his presence and in the presence of
each other. But the absence of such
form of attestation shall not render the
will in valid if it is proven that the will
was in fact signed and attested as in this
section provided.
The amendments or changes introduced by
Act No. 2645 are (a) that the will must now be
executed in a language or dialect known to the
testator; (b) that the testator and witnesses
must sign each page on the left margin; (c) that
the pages be numbered correclatively; (d) that
the attestation clause shall state the number
sheets or page used in the will and (e) that it
must appear from the attestation clause itself
that the testator and witnesses signed in the
form and manner required by law and that is
this can no longer be proven by evidence
aliunde.
The changes mentioned under (d) and (e) are
the only ones which need be considered in the
present case. The purpose of requiring the
number of sheets to be stated in the attestation
clause is obvious; the document might easily
be so prepared that the removal of a sheet
would completely change the testamentary
dispositions of the will and in the absence of a
statement of the total number of sheets such
removal might be effected by taking out the
sheet and changing the numbers at the top of
the following sheets or pages. If, on the other
hand, the total number of sheets is stated in
the attestation clause the falsification of the
document will involve the inserting of new
pages and the forgoing of the signatures of the
testator and witnesses in the margin, a matter
attended with much greater difficulty.
74
AVANCEÑA, C.J.:
The judgment appealed from allowed the
probate of the will of the deceased Victoria
Quintana executed on March 22, 1924. Without
going into discussion of the points raised by
the parties as to the formalities of this will we
find a sufficient reason for reversing the
judgment appealed from and denying the
probate thereof.
In the attestation clause there is no statement
that the witnesses to the will have signed on
the left margin of each page of the will in the
presence of the testatrix. Section 618 of Act
No. 190, as amended by Act No. 2645,
provides that he attestation clause shall state
the fact that the testator signed the will and all
the pages thereof, or caused another persons
to place his name thereon at his expressed
direction in the presence of the three witnesses
to the will, and that the latter signed the will
and all its pages in the presence of the testator
and of each other. In the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), this court has
held that the requirement that the attestation
clause must contain the statement that the
witnesses signed in the presence of each other
is imperative and non-comfort in said case in
support of this doctrine may be adduced for
holding that the will is also null and void when
in the attestation clause it does not appear that
the witnesses to the will signed it and every
page thereof on the left margin and in the
presence of the testatrix. In order to insure the
authenticity of a will, which is the object of the
law, it is just as important, if not the most
important, that the witnesses should sign in the
presence of the testator and of each
other.lawphi1.net
The judgment appealed from is reversed, and
the probate of the will of Victoria Quintana is
denied, without special pronouncement as to
costs. So ordered.
75
Page
G.R. No. L-26135 March 3, 1927 every page of the will can be proved also by
In re will of Eustaquio Hagoriles. the mere examination of the signatures
PETRONILO GUMBAN, petitioner-appellee, appearing on the document itself, and the
vs. omission to state such evident fact does not
INOCENCIA GORECHO, ET AL., opponents- invalidate the will.
appellants. It is a habit of courts to reaffirm or distinguish
Powell and Hill for appellants. previous cases; seldom do they admit
Padilla, Treñas and Magalona and Francisco, inconsistency in doctrine. Yet here, unless
Lualhati and Lopez for appellee. aided by casuistry of the extreme type, it would
MALCOLM, J.: be impossible to reconcile the Mojal and
This is an appeal by the widow, Inocencia Quintana decisions. They are fundamentally at
Gorecho, and eighteen other opponents, from variance. If we rely on one, we affirm. If we rely
an order of the Court of First Instance of Iloilo on the other, we reverse.
probating the document presented by Petronilo In resolving this puzzling question of authority,
Gumban as the last will and testament of the three outstanding points may be mentioned. In
deceased Eustaquio Hagoriles. Among the the first place, the Mojal decision was
errors assigned is included the finding of the concurred in by only four members of the court,
trial court that the alleged will was prepared in less than a majority, with two strong dissenting
conformity with the law, notwithstanding it did opinions; the Quintana decisions was
not contain an attestation clause stating that concurred in by seven members of the court, a
the testator and the witnesses signed all the clear majority, with one formal dissent. In the
pages of the will. second place, the Mojal decision was
In support of their argument on the assignment promulgated in December, 1924; the Quintana
of error above-mentioned, appellants rely on a decision was thus subsequent in point of time.
series of cases of this court beginning with in And in the third place, the Quintana decision is
the Matter of the Estate of Saguinsin ([1920], believed more nearly to conform to the
41 Phil., 875), continuing with in In re Will of applicable provisions of the law.
Andrada ([1921], 42 Phil., 180), Uy Coque vs. The right to dispose of property by will is
Navas L. Sioca ([1922], 43 Phil., 405), and In governed entirely by statute. The law of the
re Estate of Neumark ([1923], 46 Phil., 841), case is here found in section 618 of the Code
and ending with in Saño vs. Quintana ([1925]), of Civil procedure, as amended by Act No.
48 Phil., 506). Appelle counters with the 2645, and in section 634 of the same Code, as
citation of a series of cases beginning unamended. It is part provided in section 618,
with Abangan vs. Abangan ([1919], 40 Phil., as amended, that "No will . . . shall be valid . .
476), continuing through Aldaba vs. Roque . unless . . . ." It is further provided in the same
([1922], 43 Phil., 378), and Fernandez vs. section that "The attestation shall state the
Vergel de Dios ([1924], 46 Phil., 922, and number of sheets or pages used, upon which
culminating in Nayve vs. Mojal and the will and every page thereof, or caused
Aguilar ([1924], 47 Phil., 152). In its last some other person to write his name, under his
analysis, our task is to contrast and, if possible, express direction, in the presence of three
conciliate, the last two decisions cited by witnesses, and the latter witnessed and signed
opposing counsel, namely, those of Saño vs. the will and all pages thereof in the presence of
Quintana, supra, and Nayve vs. Mojal and the testator and of each other." Codal section
Aguilar, supra. 634 provides that " The will shall be disallowed
In the case of Saño vs. Quintana, supra, it was in either of the following cases: 1.
decided that an attestation clause which does If not executed and attested as in this Act
not recite that the witnesses signed the will and provided." The law not alone carefully makes
each and every page thereof on the left margin use of the imperative, but cautiously goes
in the presence of the testator is defective, and further and makes use of the negative, to
such a defect annuls the will. The case of Uy enforce legislative intention. It is not within the
Coque vs. Sioca, supra, was cited, but the province of the courts to disregard the
case ofNayve vs. Mojal and Aguilar, supra, legislative purpose so emphatically and clearly
was not mentioned. In contrast, is the decision expressed.
in Nayve vs. Mojal and Aguilar,supra, wherein We adopt and reaffirm the decision in the case
it was held that the attestation clause must of Saño vs. Quintana, supra, and, to the extent
state the fact that the testator and the necessary, modify the decision in the case
witnesses reciprocally saw the signing of the of Nayve vs. Mojal and Aguilar, supra.
will, for such an act cannot be proved by the It may not be said here that our ruling is
mere exhibition of the will, if it is not stated predicated on technicality or injustice. The will
76
therein. It was also held that the fact that the in question was formulated in a medley of three
testator and the witnesses signed each and languages, Visayan, English , and Spanish.
Page
Suspicious circumstances surrounded the
making of the will by the bedridden old man,
who is alleged to have signed it. However, no
express pronouncements on the two important
questions relating to the language of the will
and the testamentary capacity of the deceased
are required.
The order appealed from will be reversed, and
the document Exhibit A disallowed as a will,
without special pronouncement as to costs in
either instance. So ordered.
77
Page
G.R. No. L-31732 February 19, 1930 En su virtud, se deniega la solicitud en
Estate of the deceased Gregorio Pueblo. la que se pide la legalizacion del
CARMEN QUINTO, applicant-appellant, alegado testamento Exhibit A de
vs. Gregorio Pueblo y Carmen Quinto, y se
MARGARITA MORATA, in substitution of declara que Gregorio Pueblo murio
Mateo Pueblo, deceased, contestant- intestado.
appellee. From the judgment the petitioner appealed and
Guevara, Francisco and Recto for appellant. now contends:
Augusto de la Rosa and Angel Arigo for That the lower court committed an error in
appellee. denying the application of the petitioner for the
JOHNSON, J.: probate of the will of the deceased Gregorio
This is an appeal from a decision of the Pueblo.
Honorable Manuel V. Moran, judge of the The attestation clause of the will in question
Court of first Instance of Cavite, denying the (Exhibit A-1) reads as follows:
application of Carmen Quinto for the probate of Nosotros los que firmamos al final de
the alleged will of the deceased Gregorio este testamento, Florentino Joya,
Pueblo, her husband. Aguedo Soriano y Teodoro Bleza
The application for probate was filed on damos fe, de haber visto o presenciado
October 26, 1928 by Carmen Quinto, executrix el acto de firmar en esta escritura o
of said will. It was a joint and mutual will of testamento de los esposes Gregorio
Gregorio Pueblo and his said wife Carmen Pueblo y Carmen Quinto; lo firmaron
Quinto and contained a provision that the ellos en nuestra presencia, y que
surviving spouse shall take charge of the nosotros los testigos, lo firmamos en
properties therein described and that they shall presencia de cade uno de nostros, hoy
pass to the heirs and legatees at the time of 3 de noviembre de 1920. Este
the death of the surviving spouse. testamento esta compuesto de tres
To said application an opposition was filed by fojas utiles.
Mateo Pueblo, a brother of the deceased, on As will be noted, the attestation clause
the following grounds: (1) That the attestation contravenes the express requirements of
clause of said will does not state the number of section 618 of Act No. 190, as amended by Act
pages of which the will is composed, and (2) No. 2645, in two ways: First, it fails to state that
that the attestation clause does not state that each and every page of the will was signed by
each and every page of the will was signed by the testators and the witnesses; and, second, it
the testators in the presence of the witnesses, fails to state that the witnesses signed each
and that the latter signed the same in the and every page of the will in the presence of
presence of the testators and in the presence the testators.
of each other. In the case of Saño vs. Quintana (48 Phil.,
Upon the issue thus raised, and after hearing 506) this court held that "an attestation clause
the evidence, the court rendered a judgment which does not recite that the witnesses signed
denying the petition on the ground that the the will and each and every page thereof on
attestation clause did not state that the the left margin in the presence of the testator is
witnesses signed the will in the presence of the defective, and such defect annuls the will." This
testators, or that both the testators and the doctrine was restated and reaffirmed in the
witnesses signed the will and each and every case of Gumban vs. Gorecho (50 Phil., 30).
page thereof in the presence of each other. In It is vigorously contended on behalf of the
this connection the lower court said: appellant, that the alleged defect of the
. . . En la clausula de atestiguamiento attestation clause has been cured by oral
del testamento en cuestion, se hace evidence, which was admitted without
constar que los testadores firmaron el opposition on the part of the appellee. This
testamento en presencia de los tres contention cannot be sustained. The doctrine
testigos instrumentales y que estos of this court with reference to statute of frauds
firmaron el testamento los unos en is not applicable to wills. The statue of frauds
presencia de los otros, pero no se hace relates to contracts and agreements. The
constar que dichos testigos firmaron el subject of will and testaments and the
testamento enpresencia de los formalities surrounding their execution are
testadores, ni que estos y aquellos governed by separate and specific provisions
firmaron today y cada una de las of Act No. 190.
paginas del testamento los primeros An examination of section 618 of Act No. 190,
en presencia de los segundos y vice- prior to, and after its amendment by Act No.
78
Civil Code. What appears in the with the formalities prescribed by law, to
attestation clause which the control to a certain degree the disposition of his
Page
estate after his death. 13 Under the Civil Code, himself. This kind of will, unlike the ordinary
there are two kinds of wills which a testator type, requires no attestation by witnesses. A
may execute. 14 the first kind is the ordinary or common requirement in both kinds of will is
attested will, the execution of which is that they should be in writing and must have
governed by Articles 804 to 809 of the Code. been executed in a language or dialect known
Article 805 requires that: to the testator. 17
Art. 805. Every will, other than a However, in the case of an ordinary or attested
holographic will, must be will, its attestation clause need not be written in
subscribed at the end thereof by a language or dialect known to the testator
the testator himself or by the since it does not form part of the testamentary
testator's name written by some disposition. Furthermore, the language used in
other person in his presence, and the attestation clause likewise need not even
by his express direction, and be known to the attesting witnesses. 18 The last
attested and subscribed by three paragraph of Article 805 merely requires that,
or more credible witnesses in the in such a case, the attestation clause shall be
presence of the testator and of interpreted to said witnesses.
one another. An attestation clause refers to that part of an
The testator or the person ordinary will whereby the attesting witnesses
requested by him to write his certify that the instrument has been executed
name and the instrumental before them and to the manner of the
witnesses of the will, shall also execution the same. 19 It is a separate
sign, as aforesaid, each and memorandum or record of the facts
every page thereof, except the surrounding the conduct of execution and once
last, on the left margin, and all signed by the witnesses, it gives affirmation to
the pages shall be numbered the fact that compliance with the essential
correlatively in letters placed on formalities required by law has been
the upper part of each page. observed. 20 It is made for the purpose of
The attestation should state the preserving in a permanent form a record of the
number of pages used upon facts that attended the execution of a particular
which the will is written, and the will, so that in case of failure of the memory of
fact that the testator signed the the attesting witnesses, or other casualty, such
will and every page thereof, or facts may still be proved. 21
caused some other person to Under the third paragraph of Article 805, such
write his name, under his express a clause, the complete lack of which would
direction, in the presence of the result in the invalidity of the will, 22 should state
instrumental witnesses, and that (1) the number of the pages used upon which
the latter witnessed and signed the will is written; (2) that the testator signed, or
the will and all the pages thereof expressly caused another to sign, the will and
in the presence of the testator every page thereof in the presence of the
and of one another. attesting witnesses; and (3) that theattesting
If the attestation clause is in a witnesses witnessed the signing by the testator
language not known to the of the will and all its
witness, it shall be interpreted to pages, and that said witnesses also signed the
them. will and every page thereof in the presence of
In addition, the ordinary will must be the testator and of one another.
acknowledged before a notary public by a The purpose of the law in requiring the clause
testator and the attesting witness.15 hence it is to state the number of pages on which the will
likewise known as notarial will. Where the is written is to safeguard against possible
attestator is deaf or deaf-mute, Article 807 interpolation or omission of one or some of its
requires that he must personally read the will, if pages and to prevent any increase or decrease
able to do so. Otherwise, he should designate in the pages; 23 whereas the subscription of the
two persons who would read the will and signature of the testator and the attesting
communicate its contents to him in a witnesses is made for the purpose of
practicable manner. On the other hand, if the authentication and identification, and thus
testator is blind, the will should be read to him indicates that the will is the very same
twice; once, by anyone of the witnesses instrument executed by the testator and
thereto, and then again, by the notary public attested to by the witnesses. 24
before whom it is acknowledged. 16 Further, by attesting and subscribing to the will,
The other kind of will is the holographic will, the witnesses thereby declare the due
82
which Article 810 defines as one that is entirely execution of the will as embodied in the
written, dated, and signed by the testator attestation clause. 25 The attestation clause,
Page
therefore, provide strong legal guaranties for Testament and he has the same
the due execution of a will and to insure the and every page thereof, on the
authenticity thereof. 26 As it appertains only to spaces provided for his signature
the witnesses and not to the testator, it need and on the left hand margin, in
be signed only by them. 27 Where it is left the presence of the said testator
unsigned, it would result in the invalidation of and in the presence of each and
the will as it would be possible and easy to add all of us.
the clause on a subsequent occasion in the It will be noted that Article 805 requires that the
absence of the testator and its witnesses. 28 witness should both attest and subscribe to the
In its report, the Code Commission commented will in the presence of the testator and of one
on the reasons of the law for requiring the another. "Attestation" and "subscription" differ
formalities to be followed in the execution of in meaning. Attestation is the act of senses,
wills, in the following manner: while subscription is the act of the hand. The
The underlying and fundamental former is mental, the latter mechanical, and to
objectives permeating the attest a will is to know that it was published as
provisions on the law on wills in such, and to certify the facts required to
this Project consists in the constitute an actual and legal publication; but
liberalization of the manner of to subscribe a paper published as a will is only
their execution with the end in to write on the same paper the names of the
view of giving the testator more witnesses, for the sole purpose of
31
freedom in expressing his last identification.
wishes, but with sufficient In Taboada vs. Rizal, 32 we clarified that
safeguards and restrictions to attestation consists in witnessing the testator's
prevent the commission of fraud execution of the will in order to see and take
and the exercise of undue and note mentally that those things are done which
improper pressure and influence the statute requires for the execution of a will
upon the testator. and that the signature of the testator exists as
This objective is in accord with a fact. On the other hand, subscription is the
the modern tendency with signing of the witnesses' names upon the same
respect to the formalities in the paper for the purpose of identification of such
execution of wills. . . . 29 paper as the will which was executed by the
2. An examination of the last will and testament testator. As it involves a mental act, there
of Mateo Caballero shows that it is comprised would be no means, therefore, of ascertaining
of three sheets all of which have been by a physical examination of the will whether
numbered correlatively, with the left margin of the witnesses had indeed signed in the
each page thereof bearing the respective presence of the testator and of each other
signatures of the testator and the three unless this is substantially expressed in the
attesting witnesses. The part of the will attestation.
containing the testamentary dispositions is It is contended by petitioners that the
expressed in the Cebuano-Visayan dialect and aforequoted attestation clause, in
is signed at the foot thereof by the testator. The contravention of the express requirements of
attestation clause in question, on the other the third paragraph of Article 805 of the Civil
hand, is recited in the English language and is Code for attestation clauses, fails to specifically
likewise signed at the end thereof by the three state the fact that the attesting witnesses the
attesting witnesses hereto. 30 Since it is the testator sign the will and all its pages in their
proverbial bone of contention, we reproduce it presence and that they, the witnesses, likewise
again for facility of reference: signed the will and every page thereof in the
We, the undersigned attesting presence of the testator and of each other. We
Witnesses, whose Residences agree.
and postal addresses appear on What is fairly apparent upon a careful reading
the Opposite of our respective of the attestation clause herein assailed is the
names, we do hereby certify that fact that while it recites that the testator indeed
the Testament was read by him signed the will and all its pages in the presence
and the testator, MATEO of the three attesting witnesses and states as
CABALLERO; has published unto well the number of pages that were used, the
us the foregoing Will consisting of same does not expressly state therein the
THREE PAGES, including the circumstance that said witnesses subscribed
Acknowledgment, each page their respective signatures to the will in the
numbered correlatively in the presence of the testator and of each other.
83
letters on the upper part of each The phrase "and he has signed the same and
page, as his Last Will and every page thereof, on the spaces provided for
Page
his signature and on the left hand margin," the will cannot be stamped with the imprimatur
obviously refers to the testator and not the of effectivity. 33
instrumental witnesses as it is immediately We believe that the further comment of former
preceded by the words "as his Last Will and Justice J.B.L. Reyes 34 regarding Article 809,
Testament." On the other hand, although the wherein he urged caution in the application of
words "in the presence of the testator and in the substantial compliance rule therein, is
the presence of each and all of us" may, at first correct and should be applied in the case
blush, appear to likewise signify and refer to under consideration, as well as to future cases
the witnesses, it must, however, be interpreted with similar questions:
as referring only to the testator signing in the . . . The rule must be limited to
presence of the witnesses since said phrase disregarding those defects that
immediately follows the words "he has signed can be supplied by an
the same and every page thereof, on the examination of the will itself:
spaces provided for his signature and on the whether all the pages are
left hand margin." What is then clearly lacking, consecutively numbered; whether
in the final logical analysis , is the statement the signatures appear in each
that the witnesses signed the will and every and every page; whether the
page thereof in the presence of the testator subscribing witnesses are three
and of one another. or the will was notarized. All
It is our considered view that the absence of theses are facts that the will itself
that statement required by law is a fatal defect can reveal, and defects or even
or imperfection which must necessarily result in omissions concerning them in the
the disallowance of the will that is here sought attestation clause can be safely
to be admitted to probate. Petitioners are disregarded. But the total number
correct in pointing out that the aforestated of pages, and whether all
defect in the attestation clause obviously persons required to sign did so in
cannot be characterized as merely involving the presence of each other must
the form of the will or the language used substantially appear in the
therein which would warrant the application of attestation clause, being the only
the substantial compliance rule, as check against perjury in the
contemplated in the pertinent provision thereon probate proceedings. (Emphasis
in the Civil Code, to wit: ours.)
Art. 809. In the absence of bad 3. We stress once more that under Article 809,
faith, forgery, or fraud, or undue the defects and imperfections must only be
and improper pressure and with respect to the form of the attestation or the
influence, defects and language employed therein. Such defects or
imperfections in the form of imperfections would not render a will invalid
attestation or in the should it be proved that the will was really
language used therein shall not executed and attested in compliance with
render the will invalid if it is not Article 805. In this regard, however, the
proved that the will was in fact manner of proving the due execution and
executed and attested in attestation has been held to be limited to
substantial compliance with all merely an examination of the will itself without
the requirements of article 805" resorting to evidence aliunde, whether oral or
(Emphasis supplied.) written.
While it may be true that the attestation clause The foregoing considerations do not apply
is indeed subscribed at the end thereof and at where the attestation clause totally omits the
the left margin of each page by the three fact that the attesting witnesses signed each
attesting witnesses, it certainly cannot be and every page of the will in the presence of
conclusively inferred therefrom that the said the testator and of each other. 35 In such a
witness affixed their respective signatures in situation, the defect is not only in the form or
the presence of the testator and of each other language of the attestation clause but the total
since, as petitioners correctly observed, the absence of a specific element required by
presence of said signatures only establishes Article 805 to be specifically stated in the
the fact that it was indeed signed, but it does attestation clause of a will. That is precisely the
not prove that the attesting witnesses did defect complained of in the present case since
subscribe to the will in the presence of the there is no plausible way by which we can read
testator and of each other. The execution of a into the questioned attestation clause
will is supposed to be one act so that where statement, or an implication thereof, that the
84
the testator and the witnesses sign on various attesting witness did actually bear witness to
days or occasions and in various combinations, the signing by the testator of the will and all of
Page
its pages and that said instrumental witnesses will, hence when an interpretation already
also signed the will and every page thereof in given assures such ends, any other
the presence of the testator and of one interpretation whatsoever that adds nothing but
another. demands more requisites entirely unnecessary,
Furthermore, the rule on substantial useless and frustrative of the testator's last will,
compliance in Article 809 cannot be revoked or must be disregarded. The subsequent cases
relied on by respondents since it presupposes of Avera vs. Garcia, 37 Aldaba vs.
that the defects in the attestation clause can be Roque, 38 Unson vs. Abella, 39Pecson vs.
cured or supplied by the text of the will or a Coronel, 40 Fernandez vs. Vergel de Dios, et
consideration of matters apparent therefrom al., 41 and Nayve vs. Mojal, et al. 42 all adhered
which would provide the data not expressed in to this position.
the attestation clause or from which it may The other view which advocated the rule that
necessarily be gleaned or clearly inferred that statutes which prescribe the formalities that
the acts not stated in the omitted textual should be observed in the execution of wills
requirements were actually complied within the are mandatory in nature and are to be strictly
execution of the will. In other words, defects construed was followed in the subsequent
must be remedied by intrinsic evidence cases of In the Matter of the Estate of
supplied by the will itself. Saguinsin, 43 In re Will of Andrada, 44 Uy Coque
In the case at bar, contrarily, proof of the acts vs. Sioca, 45 In re Estate of
required to have been performed by the Neumark, 46 and Sano vs. Quintana. 47
attesting witnesses can be supplied by only Gumban vs. Gorecho, et al., 48 provided the
extrinsic evidence thereof, since an overall Court with the occasion to clarify the seemingly
appreciation of the contents of the will yields no conflicting decisions in the aforementioned
basis whatsoever from with such facts may be cases. In said case of Gumban, the attestation
plausibly deduced. What private respondent clause had failed to state that the witnesses
insists on are the testimonies of his witnesses signed the will and each and every page
alleging that they saw the compliance with thereof on the left margin in the presence of
such requirements by the instrumental the testator. The will in question was
witnesses, oblivious of the fact that he is disallowed, with these reasons therefor:
thereby resorting to extrinsic evidence to prove In support of their argument on the
the same and would accordingly be doing by assignment of error above-mentioned,
the indirection what in law he cannot do appellants rely on a series of cases of
directly. this court beginning with (I)n the Matter
4. Prior to the advent of the Civil Code on of the (E)state of Saguinsin ([1920], 41
August 30, 1950, there was a divergence of Phil., 875), continuing with In re Will of
views as to which manner of interpretation Andrada [1921], 42 Phil., 180), Uy
should be followed in resolving issues Coque vs. Navas L. Sioca [1922], 43
centering on compliance with the legal Phil., 405), and In re Estate of Neumark
formalities required in the execution of wills. ([1923], 46 Phil., 841), and ending
The formal requirements were at that time with Sano vs. Quintana ([1925], 48 Phil.,
embodied primarily in Section 618 of Act No. 506). Appellee counters with the citation
190, the Code of Civil Procedure. Said section of a series of cases beginning
was later amended by Act No. 2645, but the with Abangan vs. Abangan ([1919], 40
provisions respecting said formalities found in Phil., 476), continuing through Aldaba
Act. No. 190 and the amendment thereto were vs. Roque ([1922], 43 Phil., 378),
practically reproduced and adopted in the Civil and Fernandez vs. Vergel de
Code. Dios ([1924], 46 Phil., 922), and
One view advance the liberal or substantial culminating in Nayve vs. Mojal and
compliance rule. This was first laid down in the Aguilar ([1924], 47 Phil., 152). In its last
case of Abangan vs. Abangan, 36 where it was analysis, our task is to contrast and, if
held that the object of the solemnities possible, conciliate the last two
surrounding the execution of wills is to close decisions cited by opposing counsel,
the door against bad faith and fraud, to avoid namely, those of Sano vs.
substitution of wills and testaments and to Quintana,supra, and Nayve vs. Mojal
guarantee their truth and authenticity. and Aguilar, supra.
Therefore, the laws on this subject should be In the case of Sano vs. Quintana, supra,
interpreted in such a way as to attain these it was decided that an attestation clause
primordial ends. Nonetheless, it was also which does not recite that the witnesses
emphasized that one must not lose sight of the signed the will and each and every page
85
fact that it is not the object of the law to restrain thereof on the left margin in the
and curtail the exercise of the right to make a presence of the testator is defective,
Page
and such a defect annuls the will. The direction, in the presence of three
case of Uy Coque vs. Sioca, supra, was witnesses, and the latter witnessed and
cited, but the case of Nayve vs. Mojal signed the will and all pages thereof in
and Aguilar, supra, was not mentioned. the presence of the testator and of each
In contrast, is the decision in Nayve vs. other." Codal section 634 provides that
Mojal and Aguilar, supra, wherein it was "The will shall be disallowed in either of
held that the attestation clause must the following case: 1. If not executed
estate the fact that the testator and the and attested as in this Act provided."
witnesses reciprocally saw the signing The law not alone carefully makes use
of the will, for such an act cannot be of the imperative, but cautiously goes
proved by the mere exhibition of the will, further and makes use of the negative,
if it is not stated therein. It was also held to enforce legislative intention. It is not
that the fact that the testator and the within the province of the courts to
witnesses signed each and every page disregard the legislative purpose so
of the will can be proved also by the emphatically and clearly expressed.
mere examination of the signatures We adopt and reaffirm the decision in
appearing on the document itself, and the case of Sano vs. Quintana, supra,
the omission to state such evident facts and, to the extent necessary, modify the
does not invalidate the will. decision in the case of Nayve vs. Mojal
It is a habit of courts to reaffirm or and Aguilar, supra. (Emphases in the
distinguish previous cases; seldom do original text).
they admit inconsistency in doctrine. Yet But after the Gumban clarificatory
here, unless aided impossible to pronouncement, there were decisions of the
reconcile the Mojal and Quintana Court that once more appeared to revive the
decisions. They are fundamentally at seeming diversity of views that was earlier
variance. If we rely on one, we affirm. If threshed out therein. The cases of Quinto vs.
we rely on the other, we reverse. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria
In resolving this puzzling question of vs. Sarmiento, 51 and Testate Estate of
52
authority, three outstanding points may Toray went the way of the ruling as restated
be mentioned. In the first place, the in Gumban. But De Gala vs. Gonzales, et
Mojal, decision was concurred in by only al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
four members of the court, less than a Gorostiza, 55 Sebastian vs.
majority, with two strong dissenting Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
opinions; the Quintana decision was Fabia, 58 Leynez vs. Leynez, 59 Martir vs.
concurred in by seven members of the Martir, 60 Alcala vs. De Villa,61 Sabado vs.
court, a clear majority, with one formal Fernandez, 62 Mendoza vs.
dissent. In the second place, the Mojal Pilapil, 63 and Lopez vs. Liboro, 64 veered away
decision was promulgated in December, from the strict interpretation rule and
1924, while the Quintana decision was established a trend toward an application of the
promulgated in December, 1925; the liberal view.
Quintana decision was thus subsequent The Code Commission, cognizant of such a
in point of time. And in the third place, conflicting welter of views and of the
the Quintana decision is believed more undeniable inclination towards a liberal
nearly to conform to the applicable construction, recommended the codification of
provisions of the law. the substantial compliance rule, as it believed
The right to dispose of property by will is this rule to be in accord with the modern
governed entirely by statute. The law of tendency to give a liberal approach to the
the case is here found in section 61 of interpretation of wills. Said rule thus became
the Code of Civil Procedure as what is now Article 809 of the Civil Code, with
amended by Act No. 2645, and in this explanation of the Code Commission:
section 634 of the same Code, as The present law provides for only
unamended. It is in part provided in one form of executing a will, and
section 61, as amended that "No will . . that is, in accordance with the
.shall be valid . . . unless . . .." It is formalities prescribed by Section
further provided in the same section that 618 of the Code of Civil
"The attestation shallstate the number of Procedure as amended by Act
sheets or pages used, upon which the No. 2645. The Supreme Court of
will is written, and the fact that the the Philippines had previously
testator signed the will and every page upheld the strict compliance with
86
thereof, or caused some other person to the legal formalities and had even
write his name, under his express said that the provisions of Section
Page
618 of the Code of Civil difficulty, nor does it open the door to serious
Procedure, as amended consequences. The later decisions do tell us
regarding the contents of the when and where to stop; they draw the dividing
attestation clause were line with precision. They do not allow
mandatory, and non-compliance evidence aliunde to fill a void in any part of the
therewith invalidated the will (Uy document or supply missing details that should
Coque vs. Sioca, 43 Phil. 405). appear in the will itself. They only permit a
These decisions necessarily probe into the will, an exploration into its
restrained the freedom of the confines, to ascertain its meaning or to
testator in disposing of his determine the existence or absence of the
property. requisite formalities of law. This clear, sharp
However, in recent years the limitation eliminates uncertainty and ought to
Supreme Court changed its banish any fear of dire results."
attitude and has become more It may thus be stated that the rule, as it now
liberal in the interpretation of the stands, is that omissions which can be
formalities in the execution of supplied by an examination of the will itself,
wills. This liberal view is without the need of resorting to extrinsic
enunciated in the cases evidence, will not be fatal and,
ofRodriguez vs. Yap, G.R. No. correspondingly, would not obstruct the
45924, May 18, 1939; Leynez vs. allowance to probate of the will being assailed.
Leynez, G.R. No. 46097, October However, those omissions which cannot be
18, 1939; Martir vs. Martir, G.R. supplied except by evidence aliunde would
No. 46995, June 21, 1940; result in the invalidation of the attestation
and Alcala vs. Villa, G.R. No. clause and ultimately, of the will itself.67
47351, April 18, 1941. WHEREFORE, the petition is hereby
In the above mentioned decisions GRANTED and the impugned decision of
of our Supreme Court, it has respondent court is hereby REVERSED and
practically gone back to the SET ASIDE. The court a quo is accordingly
original provisions of Section 618 directed to forthwith DISMISS its Special
of the Code of Civil Procedure Proceeding No. 3899-R (Petition for the
before its amendment by Act No. Probate of the Last Will and Testament of
2645 in the year 1916. To turn Mateo Caballero) and to REVIVE Special
this attitude into a legislative Proceeding No. 3965-R (In the matter of the
declaration and to attain the main Intestate Estate of Mateo Caballero) as an
objective of the proposed Code in active case and thereafter duly proceed with
the liberalization of the manner of the settlement of the estate of the said
executing wills, article 829 of the decedent.
Project is recommended, which SO ORDERED.
reads:
"Art. 829. In the
absence of bad
faith, forgery, or
fraud, or undue and
improper pressure
and influence,
defects and
imperfections in the
form of attestation
or in the language
used therein shall
not render the will
invalid if it is proved
that the will was in
fact executed and
attested in
substantial
compliance with all
the requirements of
article 829."65
87
executed with indifference to these two codal nagkakaloob kong buong buo an
g lahat ng karapatan sa bahay at
Page
lupa na nasa 500 San Diego St.,
Lot 42, Block 24, Sampaloc, QUIRINO AGRAVA
Manila kay Felix Azuela address: 1228-Int. 3, Kahilum
at ang pagkakaloob kong ito ay w Pandacan, Manila Res. Cert. No. A-
alang pasubalit at kondiciones; 458365
Issued at Manila on Jan. 21,
Pangatlo- 1981
Na ninunumbrahan ko si VART
PAGUE LAMBERTO C. LEAO
na siyang nagpapatupad ng hulin address: Avenue 2, Blcok 7,
g habiling ito at kagustuhan ko rin Lot 61, San Gabriel,
na hindi na kailanman siyang ma G.MA., Cavite Res.
g-lagak ng piyansiya. Cert. No. A-768277 issued
at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No.
A574829
Aking nilagdaan ang Huling Habili Issued at Manila on March 2,
n na ito dito sa Maynila ika 10 ng 1981.
Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO Nilagdaan ko at ninotario ko ngay
(Tagapagmana) ong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
PATUNAY NG MGA SAKSI
In the same vein, petitioner cites the The Court of Appeals did cite these
report of the Civil Code Commission, which comments by Justice J.B.L. Reyes in its
stated that the underlying and fundamental assailed decision, considering that the failure
objective permeating the provisions on the to state the number of pages of the will in the
[law] on [wills] in this project consists in the attestation clause is one of the defects which
[liberalization] of the manner of their execution cannot be simply disregarded. In Caneda itself,
with the end in view of giving the testator more the Court refused to allow the probate of a will
[freedom] in [expressing] his last wishes. This whose attestation clause failed to state that the
objective is in accord with the [modern witnesses subscribed their respective
tendency] in respect to the formalities in the signatures to the will in the presence of the
execution of wills.[24] However, petitioner testator and of each other,[30] the other
conveniently omits the qualification offered by omission cited by Justice J.B.L. Reyes which to
the Code Commission in the very same his estimation cannot be lightly disregarded.
paragraph he cites from their report, that such
95
liberalization be but with sufficient safeguards Caneda suggested: [I]t may thus be
and restrictions to prevent the commission of stated that the rule, as it now stands, is that
Page
omission which can be supplied by an established in the will.[35] The transcendent
examination of the will itself, without the need legislative intent, even as expressed in the
of resorting to extrinsic evidence, will not be cited comments of the Code Commission,
fatal and, correspondingly, would not obstruct is for the fruition of the testators
the allowance to probate of the will being incontestable desires, and not for the
assailed. However, those omissions which indulgent admission of wills to probate.
cannot be supplied except by
evidence aliunde would result in the The Court could thus end here and
invalidation of the attestation clause and affirm the Court of Appeals. However, an
ultimately, of the will itself.[31] Thus, a failure by examination of the will itself reveals a couple of
the attestation clause to state that the testator even more critical defects that should
signed every page can be liberally construed, necessarily lead to its rejection.
since that fact can be checked by a visual
examination; while a failure by the attestation For one, the attestation clause was
clause to state that the witnesses signed in one not signed by the instrumental
anothers presence should be considered a witnesses. While the signatures of the
fatal flaw since the attestation is the only instrumental witnesses appear on the left-hand
textual guarantee of compliance.[32] margin of the will, they do not appear at the
bottom of the attestation clause which after all
The failure of the attestation clause to consists of their averments before the notary
state the number of pages on which the will public.
was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the Cagro v. Cagro[36] is material on this
clause to state the number of pages on which point. As in this case, the signatures of the
the will is written is to safeguard against three witnesses to the will do not appear at the
possible interpolation or omission of one or bottom of the attestation clause, although the
some of its pages and to prevent any increase page containing the same is signed by the
or decrease in the pages.[33] The failure to state witnesses on the left-hand margin.[37] While
the number of pages equates with the absence three (3) Justices[38] considered the signature
of an averment on the part of the instrumental requirement had been substantially complied
witnesses as to how many pages consisted the with, a majority of six (6), speaking through
will, the execution of which they had ostensibly Chief Justice Paras, ruled that the attestation
just witnessed and subscribed to. clause had not been duly signed, rendering the
Following Caneda, there is substantial will fatally defective.
compliance with this requirement if the will
states elsewhere in it how many pages it is There is no question that the
comprised of, as was the situation signatures of the three witnesses
in Singson and Taboada. However, in this to the will do not appear at the
case, there could have been no substantial bottom of the attestation clause,
compliance with the requirements under Article although the page containing the
805 since there is no statement in the same is signed by the witnesses
attestation clause or anywhere in the will itself on the left-hand margin.
as to the number of pages which comprise the
will. We are of the opinion that
the position taken by the
At the same time, Article 809 should not appellant is correct. The
deviate from the need to comply with the attestation clause is "a
formal requirements as enumerated under memorandum of the facts
Article 805. Whatever the inclinations of the attending the execution of the
members of the Code Commission in will" required by law to be made
incorporating Article 805, the fact remains that by the attesting witnesses, and it
they saw fit to prescribe substantially the same must necessarily bear their
formal requisites as enumerated in Section 618 signatures. An unsigned
of the Code of Civil Procedure, convinced that attestation clause cannot be
these remained effective safeguards against considered as an act of the
the forgery or intercalation of notarial witnesses, since the omission of
wills.[34] Compliance with these requirements, their signatures at the bottom
however picayune in impression, affords the thereof negatives their
public a high degree of comfort that the testator participation.
96
of pages used upon which the will is written; the decedent and the instrumental witnesses.
the fact that the testator had signed the will and
Page
Yet even if we consider what was mandatory.[45] Taken in isolation, these
affixed by the notary public as a jurat, the will omissions, by themselves, may not be
would nonetheless remain invalid, as the sufficient to deny probate to a will. Yet even as
express requirement of Article 806 is that the these omissions are not decisive to the
will be acknowledged, and not merely adjudication of this case, they need not be
subscribed and sworn to. The will does not dwelt on, though indicative as they may be of a
present any textual proof, much less one general lack of due regard for the requirements
under oath, that the decedent and the under Article 805 by whoever executed the will.
instrumental witnesses executed or signed the
will as their own free act or deed. The All told, the string of mortal defects
acknowledgment made in a will provides for which the will in question suffers from makes
another all-important legal safeguard against the probate denial inexorable.
spurious wills or those made beyond the free
consent of the testator. An acknowledgement
is not an empty meaningless act.[43] The
acknowledgment coerces the testator and the WHEREFORE, the petition is DENIED.
instrumental witnesses to declare before an Costs against petitioner.
officer of the law that they had executed and
subscribed to the will as their own free act or SO ORDERED.
deed. Such declaration is under oath and
under pain of perjury, thus allowing for the
criminal prosecution of persons who participate
in the execution of spurious wills, or those
executed without the free consent of the
testator. It also provides a further degree of
assurance that the testator is of certain
mindset in making the testamentary
dispositions to those persons he/she had
designated in the will.
had been his client for more than 20 years. omission of such fact in the attestation clause.
Prior to August 10, 1996, the latter consulted Moreover, while the acknowledgment of the will
Page
made mention of "7 pages including the page statement in the Acknowledgment portion of
on which the ratification and acknowledgment the subject last will and testament that it
are written," the will had actually 8 pages "consists of 7 pages including the page on
including the acknowledgment portion thus, which the ratification and acknowledgment are
necessitating the presentation of evidence written"10 cannot be deemed substantial
aliunde to explain the discrepancy. Richard's compliance. The will actually consists of 8
motion for reconsideration from the decision pages including its acknowledgment which
was likewise denied in the second assailed discrepancy cannot be explained by mere
Resolution8 dated October 22, 2009. examination of the will itself but through the
Hence, the instant petition assailing the presentation of evidence aliund.11 On this
propriety of the CA's decision. score is the comment of Justice J.B.L. Reyes
Ruling of the Court regarding the application of Article 809, to wit:
The petition lacks merit. x x x The rule must be limited to disregarding
The provisions of the Civil Code on Forms of those defects that can be supplied by an
Wills, particularly, Articles 805 and 809 of the examination of the will itself: whether all the
Civil Code provide: pages are consecutively numbered; whether
ART. 805. Every will, other than a holographic the signatures appear in each and every page;
will, must be subscribed at the end thereof by whether the subscribing witnesses are three or
the testator himself or by the testator's name the will was notarized. All these are facts that
written by some other person in his presence, the will itself can reveal, and defects or even
and by his express direction, and attested and omissions concerning them in the attestation
subscribed by three or more credible witnesses clause can be safely disregarded. But the total
in the presence of the testator and of one number of pages, and whether all persons
another. required to sign did so in the presence of each
The testator or the person requested by him to other must substantially appear in the
write his name and the instrumental witnesses attestation clause, being the only check against
of the will, shall also sign, as aforesaid, each perjury in the probate proceedings.12(Emphasis
and every page thereof, except the last, on the supplied)
left margin, and all the pages shall be Hence, the CA properly sustained the
numbered correlatively in letters placed on the disallowance of the will. Moreover, it correctly
upper part of each page. ruled that Richard pursued the wrong mode of
The attestation shall state the number of pages appeal as Section 2(a), Rule 41 of the Rules of
used upon which the will is written, and the fact Court explicitly provides that in special
that the testator signed the will and every page proceedings, as in this case, the appeal shall
thereof, or caused some other person to write be made by record on appeal.
his name, under his express direction, in the WHEREFORE, premises considered, the
presence of the instrumental witnesses, and petition is DENIED.
that the latter witnessed and signed the will SO ORDERED.
and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted
to them.1âwphi1(underscoring supplied)
ART. 809. In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein
shall not render the will invalid if it is proved
that the will was in fact executed and attested
in substantial compliance with all the
requirements of Article 805.
The law is clear that the attestation must state
the number of pages used upon which the will
is written. The purpose of the law is to
safeguard against possible interpolation or
omission of one or some of its pages and
prevent any increase or decrease in the
pages.9
100
The Regional Trial Court (RTC) As the CA correctly found, the purported
dismissed Manuels petition to approve the attestation clause embodied in the
donation and his action for annulment of Acknowledgment portion does not contain the
the contracts of sale.[2] The RTC found that number of pages on which the deed was
the execution of a Contract to Sell in favor of written.The exception to this rule in Singson v.
Dozen Corporation, after Vicente had donated Florentino[6] and Taboada v. Hon.
the lots to Manuel, was an equivocal act that Rosal,[7] cannot be applied to the present case,
revoked the donation. The Court of Appeals as the facts of this case are not similar with
(CA) affirmed the RTCs decision.[3] The CA those ofSingson and Taboada. In those cases,
held that since the donation in favor of Manuel the Court found that although the attestation
was a donation mortis causa, compliance with clause failed to state the number of pages
the formalities for the validity of wills should upon which the will was written, the number of
101
have been observed. The CA found that the pages was stated in one portion of the
deed of donation did not contain an will. This is not the factual situation in the
attestation clause and was therefore void. present case.
Page
Even granting that the Acknowledgment
embodies what the attestation clause requires,
we are not prepared to hold that an attestation
clause and an acknowledgment can be merged
in one statement.
That the requirements of attestation and
acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and
806, respectively) indicates that the law
contemplates two distinct acts that serve
different purposes. An acknowledgment is
made by one executing a deed, declaring
before a competent officer or court that the
deed or act is his own. On the other hand, the
attestation of a will refers to the act of the
instrumental witnesses themselves who certify
to the execution of the instrument before them
and to the manner of its execution.[8]
SO ORDERED.
102
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