SECOND DIVISION

 

 

DY YIENG SEANGIO, G.R. Nos. 140371-72

BARBARA D. SEANGIO

and VIRGINIA D. SEANGIO,

Petitioners, Present:

 

PUNO, J., Chairperson,

-         versus - SANDOVAL-GUTIERREZ,CORONA,

AZCUNA, and

HON. AMOR A. REYES, in her GARCIA, JJ.

capacity as Presiding Judge,

Regional Trial Court, National

Capital Judicial Region, Branch 21,

Manila, ALFREDO D. SEANGIO,

ALBERTO D. SEANGIO, ELISA D. Promulgated:

SEANGIO-SANTOS, VICTOR D.

SEANGIO, ALFONSO D. SEANGIO,

SHIRLEY D. SEANGIO-LIM, November 27, 2006

BETTY D. SEANGIO-OBAS and

JAMES D. SEANGIO,

Respondents.

x ---------------------------------------------------------------------------------------- x

 

 

DECISION

 

AZCUNA, J.:

This is a petition for certiorari1[1] with application for the issuance of a writ of

preliminary injunction and/or temporary restraining order seeking the nullification of the

orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of

Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of

preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.

Proc. No. 99-93396, and entitled, In the Matter of the Intestate Estate of Segundo C.

Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of

Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.

The facts of the cases are as follows:

 

On September 21, 1988, private respondents filed a petition for the settlement of

the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of

the RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos

as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

 

1

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the

petition. They contended that: 1) Dy Yieng is still very healthy and in full command of

her faculties; 2) the deceased Segundo executed a general power of attorney in favor of

Virginia giving her the power to manage and exercise control and supervision over his

business in the Philippines; 3) Virginia is the most competent and qualified to serve as

the administrator of the estate of Segundo because she is a certified public accountant;

and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of

the private respondents, Alfredo Seangio, for cause. In view of the purported

holographic will, petitioners averred that in the event the decedent is found to have left a

will, the intestate proceedings are to be automatically suspended and replaced by the

proceedings for the probate of the will.

 

On April 7, 1999, a petition for the probate of the holographic will of Segundo,

docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They

likewise reiterated that the probate proceedings should take precedence over SP. Proc.

No. 9890870 because testate proceedings take precedence and enjoy priority over

intestate proceedings.2[2]

 

The document that petitioners refer to as Segundos holographic will is quoted, as

follows:

 

Kasulatan sa pag-aalis ng mana Tantunin ng sinuman 

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging

2

lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. 

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3[3]

(signed)Segundo Seangio

 

Nilagdaan sa harap namin

 

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

 

(signed)

ikatlong saksi  

3

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc.

No. 9993396 were consolidated.4[4]

On July 1, 1999, private respondents moved for the dismissal of the probate

proceedings5[5] primarily on the ground that the document purporting to be the

holographic will of Segundo does not contain any disposition of the estate of the

deceased and thus does not meet the definition of a will under Article 783 of the Civil

Code. According to private respondents, the will only shows an alleged act of

disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other

compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,

there is preterition which would result to intestacy. Such being the case, private

respondents maintained that while procedurally the court is called upon to rule only on

the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of

the same, and ordering the dismissal of the petition for probate when on the face of the

will it is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1)

generally, the authority of the probate court is limited only to a determination of the

extrinsic validity of the will; 2) private respondents question the intrinsic and not the

extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a

decedent; and, 4) the rule on preterition does not apply because Segundos will does not

constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.6[6]

4

5

6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition

for probate proceedings:

A perusal of the document termed as will by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: for respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied).

 

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED without pronouncement as to costs.

SO ORDERED.7[7]

 

 

Petitioners motion for reconsideration was denied by the RTC in its order dated

October 14, 1999.

Petitioners contend that:

7

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B HEREOF) CONSIDERING THAT: 

ITHE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING

WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW; 

IIEVEN ASSUMING ARGUENDO THAT THE RESPONDENT

JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,

 III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

 

Petitioners argue, as follows:

 

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the

Rules of Court which respectively mandate the court to: a) fix the time and place for

proving the will when all concerned may appear to contest the allowance thereof, and

cause notice of such time and place to be published three weeks successively previous

to the appointed time in a newspaper of general circulation; and, b) cause the mailing of

said notice to the heirs, legatees and devisees of the testator Segundo;

 

Second, the holographic will does not contain any institution of an heir, but

rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a

disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will

and the holographic will on its face is not intrinsically void;

 

Third, the testator intended all his compulsory heirs, petitioners and private

respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the

compulsory heirs in the direct line of Segundo were preterited in the holographic will

since there was no institution of an heir;

 

Fourth, inasmuch as it clearly appears from the face of the holographic will that it

is both intrinsically and extrinsically valid, respondent judge was mandated to proceed

with the hearing of the testate case; and,

 

Lastly, the continuation of the proceedings in the intestate case will work injustice

to petitioners, and will render nugatory the disinheritance of Alfredo.

 

The purported holographic will of Segundo that was presented by petitioners was

dated, signed and written by him in his own handwriting. Except on the ground of

preterition, private respondents did not raise any issue as regards the authenticity of the

document.

 

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the

reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.

 

For disinheritance to be valid, Article 916 of the Civil Code requires that the same

must be effected through a will wherein the legal cause therefor shall be specified. With

regard to the reasons for the disinheritance that were stated by Segundo in his

document, the Court believes that the incidents, taken as a whole, can be considered a

form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a

sufficient cause for the disinheritance of a child or descendant under Article 919 of the

Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1)               When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(2)               When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(3)               When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;

(4)               When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

(5)               A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant;

(6)               Maltreatment of the testator by word or deed, by the child or descendant;8[8]

(7)               When a child or descendant leads a dishonorable or disgraceful life;

(8)               Conviction of a crime which carries with it the penalty of civil interdiction.

  

Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.

 

A holographic will, as provided under Article 810 of the Civil Code, must be

entirely written, dated, and signed by the hand of the testator himself. It is subject to no

other form, and may be made in or out of the Philippines, and need not be witnessed.

 

Segundos document, although it may initially come across as a mere

disinheritance instrument, conforms to the formalities of a holographic will prescribed by

law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose

mortis causa9[9] can be clearly deduced from the terms of the instrument, and while it

does not make an affirmative disposition of the latters property, the disinheritance of

Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance

results in the disposition of the property of the testator Segundo in favor of those who

would succeed in the absence of Alfredo.10[10]

 

Moreover, it is a fundamental principle that the intent or the will of the testator,

expressed in the form and within the limits prescribed by law, must be recognized as the

8

9

10

supreme law in succession. All rules of construction are designed to ascertain and give

effect to that intention. It is only when the intention of the testator is contrary to law,

morals, or public policy that it cannot be given effect.11[11]

Holographic wills, therefore, being usually prepared by one who is not learned in

the law, as illustrated in the present case, should be construed more liberally than the

ones drawn by an expert, taking into account the circumstances surrounding the

execution of the instrument and the intention of the testator.12[12] In this regard, the

Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng

Mana, was intended by Segundo to be his last testamentary act and was executed by

him in accordance with law in the form of a holographic will. Unless the will is

probated,13[13] the disinheritance cannot be given effect.14[14]

11

12

13

14

With regard to the issue on preterition,15[15] the Court believes that the

compulsory heirs in the direct line were not preterited in the will. It was, in the Courts

opinion, Segundos last expression to bequeath his estate to all his compulsory heirs,

with the sole exception of Alfredo. Also, Segundo did not institute an heir16[16] to the

exclusion of his other compulsory heirs. The mere mention of the name of one of the

petitioners, Virginia, in the document did not operate to institute her as the universal

heir. Her name was included plainly as a witness to the altercation between Segundo

and his son, Alfredo.

Considering that the questioned document is Segundos holographic will, and that

the law favors testacy over intestacy, the probate of the will cannot be dispensed with.

Article 838 of the Civil Code provides that no will shall pass either real or personal

property unless it is proved and allowed in accordance with the Rules of Court. Thus,

unless the will is probated, the right of a person to dispose of his property may be

rendered nugatory.17[17]

In view of the foregoing, the trial court, therefore, should have allowed the

holographic will to be probated. It is settled that testate proceedings for the settlement of

the estate of the decedent take precedence over intestate proceedings for the same

purpose.18[18]

15

16

17

18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court

of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.

Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the

allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.

No. 98-90870 is hereby suspended until the termination of the aforesaid testate

proceedings.

No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-3362             March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrix-appellee, vs.PILAR GIL VDA. DE MURCIANO, oppositor-appellant.

Eligio C. Lagman for appellant.Reyes, Albert and Agcaoili for appellee.

JUGO, J.:

The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only question of law. Her counsel assigns the two following alleged errors:

Primer Error. — El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos Gil no ha sido otogar de acuerdo con la ley.

Segundo Error. — Erro finalmente a legalizar el referido testamento.

The alleged will read as follows:

Primera Pagina (1)

EN EL NOMBRE DE DIOS, AMEN

Yo, Carlos Gil, de 66 años de edad, residente de Porac, Pampanga, I. F., hallandome sano y en pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de persona extraña, otorgo y ordeno este mi testamento y ultima voluntad en castellano, idioma que poseo y entiendo, de la manera siguiente:

1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos hijos;

2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;

3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera y si hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se adjudicaran a Don Carlos Worrel.

4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel a quien tengo absoluta confianza, con relevacion de fianza;

En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.

CARLOS GIL

Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA

(Fdo.) MARIANO OMAÑA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:

. . . The only copy available is a printed form contained in the record appeal in case G.R. No. L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this is a true and correct copy of the will. (P. 10, Record on Appeal).

The appeal being only on questions of law the above finding of the court below cannot be disputed. The conclusions of law reached by said court are based on it. Moreover, the finding is correctly based on the evidence of record. The parties agreed that said copy is true and correct. If it were otherwise, they would not have so agreed, considering that the defect is of an essential character and is fatal to the validity of the attestation clause.

It will be noted that the attestation clause above quoted does not state that the alleged testor signed the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the substance of the statement.

It is claimed that the correction may be made by inference. If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line? Following that procedure we would be making interpolations by inferences, implication, and even by internal circumtantial evidence. This would be done in the face of the clear, uniquivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190, before it was amended, contained the following provision:

. . . But the absence of such form of attestation shall not render the will invalid if it proven that the will was in fact signed and attested as in this section provided.

However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the contents of the attestation clause, entirely suppressed the above-quoted provision. This would show that the purpose of the amending act was to surround the execution of a will with greater guarantees and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law requires certain requisities for the conclusiveness of circumstantial evidence.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator should have made an attestation clause, which is the function of the witness. But the important point is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is evident that one cannot certify his own signature, for it does not increase the evidence of its authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is true, but said rules apply to the body of the will, containing the testamentary provisions, but not to the attestation clause, which must be so clear that it should not require any construction.

The parties have cited pro and con several decisions of the Supreme Court, some of which are said to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended by Act No. 2645.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:

1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL PROCEDURE CONSTRUED. — The right to dispose of the property by will is governed entirely by statute. The law is here found in section 618 of the Code of Civil Procedure, as amended. The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention.

2. ID.; ID.; ATTESTATION. — The Philippine authorities relating to the attestation clause to wills reviewed. The cases of Saño vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra, modified.

3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil Procedure, as amended, which provides that "The attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other" applied and enforced.

4. ID.; ID.; ID.; ID. — An attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. (Sano vs. Quintana, supra.)

In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief Justice of the Supreme Court, in his decision made the following pronouncement:

. . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los testadores firmaron el testamento en presencia de los tres testigos instrumentales y que estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar que dichos testigos firmaron el testamento en presencia de los testadores, ni que estos y aquellos firmaron todas y cada

una de las paginas del testamento los primeros en presencia de los segundos y vice-versa.

En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio intestado.

The Supreme Court fully affirmed the decision, laying down the following doctrine:

1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. — The attestation clause must be made in strict conformity with the requirements of section 618 of Act No. 190, as amended. Where said clause fails to show on its face a full compliance with those requirements, the defect constitutes sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to establish facts not appearing on the attestation clause, and where said evidence has been admitted it should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).

2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. — Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to give effect to the intention of the Legislature. Statutes prescribing formalities to be observed in the execution of wills are very strictly construed. Courts cannot supply the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban vs. Gorcho case, supra, but not to the extent of validating an attestation clause similar to that involved herein.

In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was complete, and it was also signed by the two attesting witnesses. For this reason, the court said:

In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above described paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of section 1 of Act No. 2645 which provides that: . . . (p. 381, supra.)

The attestation clause involved herein is very different.

In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:

An attestation clause to a will, copied from a form book and reading: "We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testatrix, whose name is signed hereinabove, has publish unto us the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same and each page thereof in the presence of said testatrix and in the presence of each other," held not to be fatally defective and to conform to the law.

This very different from the attestation clause in the case at bar.

In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will was objected to on the ground that, although the attestation clause stated that "each of the pages of which the said will is composed" was signed by the testatrix at the left margin and at the foot of the fifth page, it did not state that the signature was made in the presence of the witnesses. It was held, however, that said deficiency was cured by the phrase "as well as by each of us in the presence of the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and, unlike the attestation clause in the present case, does not necessitate any correction. In the body of the will the testatrix stated that she signed in the presence of each and all of the three witnesses. This was considered as a corroboration, but it was unnecessary.

In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil., 745), the attestation clause reads as follows:

Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador, Valerio Leynez. El testamento consta de dos (2) paginas solamente.

The objection was that the attestation clause did not state that the testator and the witnesses signed each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore, that in case of the will complied with all the requisites for its due execution. In the instant case, essential words were omitted.

In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18, 1939), the attestation clause reads as follows:

Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro paginasen papel de maquinilla. Que

igualmente estabamos presentes cuando el firmo este documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de cada uno de nosotros.

The above attestation clause is substantially perfect. The only clerical error is that it says "testador" instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders unnecessary the use of the verb "firmamos."

In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause did not state the number of pages of the will. However, it was held that this deficiency was cured by the will itself, which stated that it consisted of three pages and in fact it had three pages.

In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the Court of Appeals, the attestation clause (translated in Spanish) reads as follows:

Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos, firmamos enpresencia de la testadora y en presencia de cada uno de nosotros.

It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the witnesses of each and every page of the will, but the omission is cured by the fact that their signatures appear on every page. This attestation clause is different from that involved in the present case.

There is no reason why wills should not be executed by complying substantially with the clear requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of property by will is not natural but statutory, and statutory requirements should be satisfied.

The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon the compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed in the language of the statute, can be

considered by the court, and whether the will as presented, shows a compliance with the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.)

In interpreting the legislature's thought, courts have rigidly opposed any exception tending to weaken the basic principle underlying the law, the chief purpose of which is to see that the testator's wishes are observed. It is possible, in some or many cases, a decedent may have thought he had made a will, but the statute says he had not. The question is not one of his intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly expressing the intertions of the testator are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . . has taught of it best and has therefore determined, to run the risk of frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.

It has always been the policy of this court to sustain a will if it is legally possible to do so, but we cannot break down the legislative barriers protecting a man's property after death, even if a situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419, 420.)

In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It is so ordered.

Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions

TUAZON, J., dissenting:

The decision takes for granted that the will was written just as it was copied in the stipulation of facts by the parties. But counsel for appellee makes the correctness of the copy an issue thereby raising the question of not whether the burnt will possessed the statutory requirements but whether the copy is erroneous. Since this is a chief feature on which the appellee's case is built; since, in fact, the objection to form of the attestation clause, with which the decision wholly deals, would disappear if the appellee's contention were well founded, it is proper that in this dissenting opinion we should accord the matter at least a passing notice.

It may be stated as background that the original of the will was filed in the Court of First Instance of Manila in 1943; that in 1945, before the will came up for probate, it was destroyed by fire or looters; that in the probate proceeding after liberation, the parties submitted an agreed statement of facts in which the will was reproduced as copied in the record on appeal in another case docketed in this court on appeal as G.R. No. L-254 and decided on April 30, 1948. It further appears from the record of that case and from the decision of this court that the controversy there concerned the right of a nephew of the testator to impugn the will, it being alleged that he was not a legal heir and had no interest in the probate.

As transcribed in the majority decision, it will be seen that the attestation clause is truncated and meaningless. The last of the compound sentence in incomplete, lacking an adjective phrase. Counsel for appellee contends that the phrase "ha sido firmado por el testador" or equivalent expression between the words "del mismo" and the words "en nuestra presencia" should be inserted if the sentence is to be complete and have sense. The attestation clause with the inclusion of the omitted phrase, which we italicize should read thus:

Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que precede escrito en la lengua castellana que conoce la testador, compuesto de las paginadas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todos las hojas del mismo (Ha sido firmado por el testador) en nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo presencia del testador y en la de cada uno de nosotros.

It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the copy are enhanced by the fact that the form of the will was not in controversy. The form of the will being immaterial, it is easily conceivable that little or on care was employed in the copying thereof in the pleading or record on appeal above mentioned. The absence of the signature of the testator on the first page of the copy is an additional proof that little or on pain was taken to insure accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.

Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly, Attorney Mariano Omaña, who drafted the whole instrument and signed it as an attesting witness, knew the law and, by the context of the whole instrument, has shown familiarity with the rules of grammar and ability to express his idea properly.

Read in the light of these circumstances — without mentioning the evidence or record, not objected to, that the testator signed the will in the presence of the attesting witnesses — so important an omission as to make the sentence senseless — granting such omission existed in the original document-could not have been intentional or due to ignorance. The most that can be said is that the flaw was due to a clerical mistake, inadvertance, or oversight.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the record on Appeal" above mentioned is bound by the agreement. This is not an absolute rule. The binding effect of a stipulation on the parties does not go to the extent of barring them or either of them from impeaching it on the score of clerical error or clear mistake. That there was such mistake, is indubitable. It is noteworthy that the opponent and appellant herself appears not to have noticed any defect in the attestation clause as copied in the stipulation. It would seem that in the court below she confined her attack on the will to the alleged failure of the testator to sign the first page. We say this because it was only the alleged unsigning of the first page of the document which the trial court in the appealed decision discussed and ruled upon. There is not the slightest reference in the decision, direct or implied, to any flaw in the attestation clause — which is by far more important than the alleged absence of the testator's signature on the first page.

As stated the problem posed by the omission in question is governed, not by the law of wills which requires certain formalities to be observed in the execution, but by the rules of construction applicable to statues and documents in general. And this rule would obtain even if the omission had occurred in the original document and not in the copy alone. In either case, the court may and should correct the error by supplying the omitted word or words.

In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion se ha incurrido en omisiones que la razon y el sentido comon pueden suplirlas sin alterar ni tergiversar la intencion tanto del testador como la de los tres testigos que intervinieron en el otorgamiento de la misma. Teniendo en cuenta la fraselogia de la segunda parte de la clausula se observara que las omisiones, aunque son substanciales, consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de atestacion surtan sus efectos.

La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los errores gramaticales de que misma adolece, incluyendo la insercion del verbo "firmamos" que se omitio involuntariamente, esta de acuerdo con las reglas fundamentals de interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la intencion del que haya redactado el instrumento (art. 288, Cod. de Proc. Civ.; Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)

La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia en vista de que se ha presentado prueba alguna que insinue siquiera que en el otorgamiento del testamento se ha cometido dolo o fraude con el

animo de perjudiar a cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131, 132.)

From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever necessary to effectuate the testator's intention as expressed in the will; but not where the effect of inserting the words in the will would alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50, 51, the same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules have been established for guidance in the construction or interpretation to be placed upon such a will, and in general a will should be construed according to these established rules of construction." Speaking of construction of statutes which, as has been said, is applicable to construction of documents, the same work, in Vol. 59, p. 992, says: "Where it appears from the context that certain words have been inadvertently omitted from a statute, the court may supply such words as are necessary to complete the sense, and to express the legislative intent.

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2 Page on Wills, 840, 841; 57 Am. Jur., 720.)

Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the draftsman intended, that the mistake in language in said clause was not inadvertent, and consider the case on the premise from which the court has approached it; is the decision well grounded, at least in the light of this court's previous decisions?

At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the will was sustained, found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was more than four-square behind the case at bar. There the departure from the statutory formality was more radical, in that the testator took charge or writing the entire attestation clause in the body of the will, the witnesses limiting their role to signing the document below the testator's signature. Here, at most, the testator took away from the witness only a small part of their assigned task, leaving them to perform the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc, through Mr. Justice Villamor said (syllabus): "When the attestation clause is signed by the witnesses to the instruments besides the testator, such attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts recited in said attestation appear to have been make by the testator himself."

That was good doctrine when it was announced. We think it is good law still. That ruling should set the present case at rest unless the court wants to discard it. On the possibility that this is the intention, we will dwell on the subject further.

This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there have been noticeable in the Philippines two divergent tendencies in the law of wills — the one being planted on strict construction and the other on liberal construction. A late example of the former views may be found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement of the law. The basic case in the other direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions." In the Abangan case, unanimous court, speaking through Mr. Justice Avanceña, later Chief Justice, observed: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primodial 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."

Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M. Ozoa (1933), 57 J. F., 1007; Sebastian vs. Pañganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl. No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.

The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same questions might well have been asked in the case above cited by the opponents of the new trends. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The decisions we have cited to tell us when and where to stop; the dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to fill a void in any part of the document is attempted. They only permit a probe, an exploration within the confines of the will, to ascertain its meaning and to determine the existence or absence of the formalities of law. They do not allow the courts to go outside the will or to admit extrinsic evidence to supply missing details that should appear in the will itself. This clear, sharp limitation eliminates uncertainly and ought to banish any fear of dire results.

The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or forgot that the testator signed the will in their presence, the testator said that he did and the witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate consequences. It was the realization of the injustice of the old way that impelled this court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance. It has been said, and experience has known, that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That, it must be conceded, is the effect in this case of this court's rejection of the will under consideration. For the adverse party concedes the genuineness of the document. At least, the genuineness is super obvious, and there is not the slightest insinuation of undue pressure, mental incapacity of the testator of fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by his own bootstraps." The simile, we say with due respect, does not look to us quite well placed. Under physical law a man cannot raise his body from the ground by his own bare hands without the aid of some mechanical appliance, at least not for more than a flitting moment. But there is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. The rationale of our dissent is that he is not. If we were to make a metaphorical comparison, it would be more appropriate to say that a man can and generally does himself pull the bootstraps to put the boots on.

Coming to execution of wills, we see no legitimate practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. The will is the testator's and the intervention of attesting witnesses is designed merely to protect the testator's and not anybody else's interest.

If the sole purpose of the statute is to make it certain that the testator has definite and complete intention to pass his property, and to prevent, as far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481), What better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly different from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience. The chief requirements of statutes are writing, signature by the testator, and attestation and signature of three witnesses. Whether the courts profess to follow the harsher rule, whether to follow the milder rule, they agree on one thing — that as long as the testator performs each of those acts the courts should require no more. (1 Page on Wills, 481, 484.)

Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

R E S O L U T I O N

March 20, 1953

TUASON, J.:

This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly six justices voted for reversal and five for affirmance of the probate court's order admitting the will to probate, the vote upon reconsideration was six for affirmance and five for reversal, thereby making the dissenting opinion, which had been filed, the prevailing rule of the case. Under the circumstances, this resolution will largely be confined to a restatement of that dissenting opinion.

The will in question was presented for probate in the Court of First Instance of Manila in 1943 with Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano, decedent's sister opposing the application. Toledo's legal right to intervene was questioned by the proponent of the will, and the objection was sustained in an order which was affirmed by this court in G. R. No. L-254. As a result of the latter decision, Toledo was eliminated from the case and did not appear when the trial was resumed.

The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal, and early in 1945, before the application was heard on the merit, the record, along with the will, was destroyed, necessitating its reconstitution after liberation. In the reconstitution, a stipulation of facts was submitted in which, according to the appealed order, "both parties . . . agreed that the will as transcribed in the record on appeal in Case G. R. No. L-254 is true and a correct copy.

The will consisted of only two pages, and the attestation clause as thus copied reads:

NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento que precede escrito en la lengua castellana que canoce la testador, compuesto de dos paginas utiles con la clausula de atestigamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA.

(Fdo.) RAMON MENDIOLA.

(Fdo.) MARIANO OMAÑA

It will be noted from the above copy that the last of the compound sentence is truncated and meaningless. This defect is the main basis of the appellant's sole assignment of error.

Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent expression between the words "del mismo" and the words "en nuestra presencia" should be inserted if the attestation clause is to be complete and have sense. With this insertion the attestation clause would read ". . ., asi como todas las hojas del mismo han sido firmadas por el testador en nuestra presencia . . ." The point is well taken.

It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the copy are enhanced by the fact that the form of the Will was not controversy in Toledo's appeal. The form of the will being immaterial, it is easily conceivable that little or no care was employed in transcribing the document in the agreement or record on appeal. The absence of the signature of the testator on the first page of the copy is an additional proof that little or no pain taken to insure accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another indication of the haste and carelessness in the transcription.

Quite aside from all this, the testator was presumed to know the law, as the trial court says. Certainly, Attorney Mariano Omaña, who drew the instrument and signed it as an attesting witness, knew the law and, by the context thereof, has shown familiarity with the rules of grammar and ability to express his idea properly. In the light of these circumstances and of further fact that the clause was brief and, by its importance, must have been written with utmost concern, so important an omission as to make the clause or sentence senseless could not have been made, intentionally or otherwise, in the original.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the Record on appeal" is bound by the agreement. This is not an absolute rule. The binding effect of a stipulation on the parties does not go to the extent of barring either of them from impeaching it on the score of clerical error or clear mistake. The mistake just pointed out clearly brings the case within the exceptions of the rule. The able counsel for the proponent of the will could not possibly have subscribed to the agreement if they had noticed the incomplete sentence in the copy without making an objection or reservation.

The problem posed by the omission in question is governed, not by the law of wills which requires certain formalities to be fulfilled in the execution, but by the rules of construction applicable to statutes and documents in general. And this rule would obtain whether the omission occurred in the original document or in the copy alone. In either case, the court may and should correct the error by supplying the omitted word or words.

In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion se ha incurrido en omisiones que la razon y el sentido cumon pueden suplirlas sin altenar ni tergiversar la intencion tanto del testador como la de los tres testigos que intervenieron en el otorgamiento de la misma. Teniendo en cuenta la fraseologia de la segunda parte de la clausula se observara que las omisiones, aunque son substanciales, consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de atestacion surtan efectos.

La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los errores gramanticales de que misma adolece, incluyedo la insercion del verbo "firmamos" que se omitio involuntariamente, esta de acurdo con las reglas fundamentales de interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la intencion del que haya redactado el instrumento (art 286, Cod. de Proc. Civil; Pecson contra Coronel, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pages. 225, 226).

La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia en vista de que no se ha presentado prueba alguna que insinue siquiera que en el otorgamiento del testamiento se ha cometido dolo o fraude con el animo de perjudicar a cualquiera. Testamentaria de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento, No. 23, pags. 131, 132.)

From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever necessary to effectuate the testator's intention as expressed in the will: but not where the effect of inserting the words in the will would alter or defeat such intention, or change the meaning of words that are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules been established for guidance in the construction or interpretation to be placed upon such a will, and in general a will should be construed according to these established rules of construction." And referring to construction of statues which, as has been said, is applicable to construction of documents, C. J. S., in Vol. 59, p. 992, tells us that "Where it appears from the context that certain words have been inadvertently from a statute, the court may supply such words as are necessary to complete the sense, and to express the legislative intent."

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2 Page on Wills 840; 57 Am. Jur., 720.)

But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly as it was copied in Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by the testator's own declaration? to wit: "En testimonio de lo cual, firmo este mi testamento y en el margen izquierdo de cada una de sus dos

paginas utiles con la clausula de atestiguamiento en presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga, I. F., el dia 27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.

As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this court. See Aldaba vs. Roque, 43 Phil., 378. That case was more than foursquare behind the case at bar. There the departure from the statutory formality was more radical, in that the testator took charge of writing the entire attestation clause in the body of the will, the witnesses limiting their role to signing the document below the testator's signature. Here, at the most, the testator took away from the witnesses only a small part of their assigned task, leaving to them the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in banc, through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):

When the attestation clause is signed by the witnesses to the instruments, besides the testator, such attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts recited in said attestation clause appear to have been made by the testator himself.

That ruling should set the present case at rest unless we want to revert to the old, expressly abandoned doctrine, in a long line of what we believe to be better-considered decisions.

This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there have been noticeable in the Philippines two divergent tendencies in the lie of wills — the one being planted on strict construction and the other on liberal construction. A late example of the former views be found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement of the law. The basic rule in the other direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions."

In the Abangan case, a unanimous court, speaking through Mr. Justice Avanceña, later Chief Justice, observed:

"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primodial 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."

Subsequent decisions which followed and adopted the Abangan principle were: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922), 43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs. Cartagena (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de N. Ozoa (1933), 57 J. F., 1007; Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939), 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl., No. 3, p. 196; Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941), 40 Off. Gaz., 1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De Villa (1941), 40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No. 1, p. 211.

It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same question might well have been asked by the opponents of the new trends in the cases above cited. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.

The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or forgot to say that the testator signed the will in their presence, the testator said that he did and the witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate consequences. It was the realization of the injustice of the old way that impelled this court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance. It has been said, and experience has shown, that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. That, must be conceded, would be the effect in this case if the will under consideration were rejected. For the adverse party now concedes the genuineness of the document. At any rate, the genuineness is super obvious, and there is not the slightest insinuation of undue pressure, mental incapacity of the testator, or fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by his own bootstraps." The simile does not look to us quite well placed. There is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. The rationale of this decision is that he is not.

If we were to make a metaphorical comparison, it would be more correct to say that a man can and generally does himself pull the bootstraps when he puts his boots on.

Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose of the statute in requiring the intervention of witnesses is to make it certain that the testator has definite and complete intention to pass his property, and to prevent, as far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481), what better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and bungling it or the attestation clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means to an end and not the end themselves, and that end is achieved by another method slightly from the prescribed manner, what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience.

A second ground of attack on the questioned will is that the first page or sheet thereof does not bear the testator's signature. The discussion on the correctness of the copy of the attestation clause amply answers this objection in fact, the appellee's case is much stronger on this point for the reason that there is not only speculative but also positive basis for the conclusion that the testator's signature was affixed to the first page of the original. Both the testator and the attesting witnesses stated in the will and in the attestation clause, respectively, that the former signed both pages or sheets of the testament.

Upon the foregoing consideration, the order of the probate court is affirmed with costs.

A motion dated February 17, 1953, was filed after the motion for reconsideration was deliberated and voted upon, in behalf of the minor children of Carlos Worrel, who was a residuary legatee under the will and who is alleged to have died on February 6, 1949. The motion prays that a guardian ad litem be appointed for the said children, and allowed to intervene and file "A Supplementary Memorandum in Support of Appellant's (Appellee's?) Motion for reconsideration." Counsel for the appellant objects to the motion on the ground that the movants having only a contingent interest under the will are not of right entitled to intervene.

As this case has already been considerably delayed and thoroughly considered and discussed from all angles, it is the sense of the court that the children's intervention with the consequent further delay of the decision would not serve the best interest of the parties. For this reason, the motion is denied.

Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner, vs.THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

 

SARMIENTO, J.:

This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.

On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila.

On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides:

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the

survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7

On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:

WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship

agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings:

xxx xxx xxx

... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17

xxx xxx xxx

In Macam v. Gatmaitan, 18 it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as

Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. 19

xxx xxx xxx

There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other.

It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24

Under Article 2010 of the Code:

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk

is present. In the case at bar, the risk was the death of one party and survivorship of the other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased.

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-10907             June 29, 1957

AUREA MATIAS, petitioner, vs.HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire estate of the deceased — except the properties bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred against him by Basilia Salud and for another postponement of said hearing. This motion was not granted, and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and, accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office, and that said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the appointment of the three above named persons" — Basilia Salud, Ramon Plata and Victorina Salud — "for the management of the estate of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by reason of physical disability, due to old age, and recommended the appointment, in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias — she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate of the alleged will of the deceased — and proposed that the administration of her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the alleged will of the deceased, that until its final disallowance — which has not, as yet, taken place she has a special interest in said estate, which must be protected by giving representation thereto in the management of said estate; that, apart from denying her any such representation, the management was given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules

of Court do not permit the appointment of more than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate of the deceased, because the probate of the alleged will and testament of the latter — upon which petitioner relies — has been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and Ramon Plata have not done anything that would warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for the management of said. As a consequence, said petitioner had no opportunity to object to the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order of February 27, 1956, to this effect, denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the three (3) above-named persons for the management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order dated August

11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a reversal of the aforementioned order of Judge Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said alleged will being still within realm of legal possibility, Aurea Matias has — as the universal heir and executrix designated in said instrument — a special interest to protect during the pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as executrix in the alleged will and testament of her deceased husband, the probate of which had denied in an order pending appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will, which is now pending appeal, because the decision is not yet final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. The lower court appointed therein one special administrator for some properties forming part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate and independent special administrators. In the case at bar there is only one (1) special administration, the powers of which shall be exercised jointly by two special co-administrators. In short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties concerned, for action in conformity with the views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Felix, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6285             February 15, 1912

PEDRO BARUT, petitioner-appellant, vs.FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant. Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1 just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan

at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who signs the name of the testator for him must also sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person 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 which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the person who signed the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this must be written by the witness signing at the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the person who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be

probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that, when the testator or testatrix is unable or does not know how to sign, the person who, in the presence and under the express direction of either of them, writes in the name of the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of the will that the said person so requested to sign the testator or testatrix write the name of either in his own handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills executed in accordance with the provisions of the Code of Civil Procedure, never has the specific point just above mentioned been brought into question. Now for the first time is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being required by the said code, the signature of the name of the person who, at the request of the testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its observance in cases where the testator or testatrix is unable or does not know how to sign his or her name, expressly prescribed the practical method of complying with the provisions of the law on the subject. Among these decisions several were written by various justices of this court, some of whom are no longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will, reads as follows:

Wills, authentication of . — Where a will is not signed by a testator but by some other person in his presence and by his direction, such other person should affix

the name of the testator thereto, and it is not sufficient that he sign his own name for and instead of the name of the testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will, states:

1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure; consequently where a testator is unable to sign his name, the person signing at his request must write at the bottom of the will the full name of the testator in the latter's presence, and by his express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements appear:

Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to the will, and she requested another person to sign it for her. Held, That the will was not duly executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has stated that by reason of his inability to sign his name he requested one of the three witnesses present to do so, and that as a matter of fact, the said witness wrote the name and surname of the testator who, stating that the instrument executed by him contained his last will, put the sign of the cross between his said name and surname, all of which details are set forth in a note which the witnesses forthwith subscribed in the presence of the testator and of each other, said will may be probated.

When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have been complied with, the fact that the witness who was requested to sign the name of the testator, omitted to state the words 'by request of .......... the testator,' when writing with his own hand the name and surname of the said testator, and the fact that said witness subscribed his name together with the other witnesses and not below the name of the testator, does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria Siason:5

The recital of the name of the testator as written below the will at his request serves as a signature by a third person.

Moreover among the grounds given as a basis for this same decision, the following appears:

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but did not mean to exclude any other for substantially equivalent.

In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

The testatrix was unable to sign her will with her own hand and requested another person to sign for her in her presence. This the latter did, first writing the name of the testatrix and signing his own name below: Held, That the signature of the testatrix so affixed is sufficient and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of another name before that of the testator when such name may be treated as nonexistent without affecting its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act.

It is true that in none of the decisions above quoted was the rule established that the person who, at the request of the testator or testatrix, signed the latter's or the former's name and surname to the will must affix his own signature; but it no less true that, in prescribing the method in which the provisions of the said section 618 to be complied with, it was stated that, in order that a will so executed might be admitted to probate, it was an indispensable requisite that the person requested to sign in place of the testator or testatrix, should write the latter's or the former's name and surname at the foot of the will in the presence and under the direction of either, as the case might be, and should afterwards sign the instrument with his own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will should likewise affix his own signature thereto, name and

surname, though it be considered to be neither a rule nor a requisite necessary to follow for the admission of the will to probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and integral part of the required conditions for the fulfillment of the provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating in the decisions hereinabove quoted that the name and surname of the said person should be affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail be understood to be contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that the person requested to write the name of the testator or testatrix in the will also sign the instrument with his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of this country and for sake of an upright administration of justice, it should be maintained that such a signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause of controversy between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a traditional conception of the laws which he has known since youth, relative to the form of execution of testaments, he believed it to be a vary natural and common sense requisite that the signature, with his own name and surname, of the person requested to write in the will the name and surname of the testator or testatrix should form a part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before referred to — a requisite deemed to be convenient and prudent in the majority opinion — formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The aforementioned different decisions were drawn up in the form in which they appear, and signed without dissent by all the justices of the court on various dates. None of them hesitated to sign the decisions, notwithstanding that it was expressly held therein that the person above mentioned should, besides writing in the will the name and surname of the testator or testatrix, also sign the said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will not be superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws that governed in these Islands, with respect to witnesses who were not able or did not know

how to sign their testimony given in criminal or civil cases, in which event any person at all might write the name and surname of the witness who was unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and, this done, it was considered that the instrument had been signed by the witness, though it is true that all these formalities were performed before the judge and the clerk or secretary of the court, which thereupon certified that such procedure was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who writes the name and surname of the testator or testatrix does so by the order and express direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the signature of a deposition, the witness, who could not or did not know how to sign, did not need to designate anyone to write the deponent's name and surname, and in practice the witness merely made a cross beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among them those of the Civil Code, the person or witness requested by the testator or testatrix who was not able or did not know how to sign, authenticated the will by signing it with his own name and surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to sign, one of the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with respect to the signing of a will by a testator or testatrix who did not know how or who could not sign, consisted in that the person appointed and requested by the testator or testatrix to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will and after the words "at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal provisions, which it may said, are traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance therewith as regards the execution and signing of a will, should have believed that, after the name and surname of the testator or testatrix had been written at the foot of the will, the person who signed the instrument in the manner mentioned should likewise sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with his own name and surname, and since this suggestion is

not opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition of this country, does not prejudice the testator nor those interested in an inheritance, and, on the contrary, constitutes another guarantee of the truth and authenticity of the letters with which the name and surname of the testator of testatrix are written, in accordance with his or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts and which in the present case has filed a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises, but in the opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled him to believe that the proposition should be enforced that the witness requested or invited by the testator or testatrix to write his or her name to the will, should also subscribed the instrument by signing thereto his own name and surname; and therefore, with the proper finding in this sense, and reversal of the judgment appealed from, that the court below should be ordered to proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the law.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-5971            February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the 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 relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-36033 November 5, 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

 

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of

the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page

thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and 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 the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of

the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of 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 other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.