6. numbered correlatively in letters (succession full text) art 805

8/11/2019 6. Numbered Correlatively in Letters (Succession Full Text) Art 805

1/36

6. ALL PAGES SHALL BE NUMBERED CORRELATIVELY INLETTERS ON THE UPPER PART OF EACH PAGE

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-20475 March 19, 1924

In re will of TAN DIUCO, deceased. MAMERTA BASE,petitioner-appellant.

C.K. Langleon for petitioner and appellant.

ARAULLO, C.J.:

On March 3, 1921, Mamerta Base instituted this proceeding in the Court of FirstInstance of Leyte for the probate of the will, Exhibit A, executed, according to her, by theChinaman Tan Diuco, a resident of the municipality of Malitbog of said province, whodied on December 8, 1920. That court denied the probate of the will on November 2,1922, and the petitioner brought the case on appeal to this court, alleging that the lowercourt erred in holding that said will was not signed by three instrumental witnesses andin not allowing it to probate.

After a hearing on the petition, the Court of First Instance entered the order appealedfrom, in which it is found that said will was executed with all the solemnities prescribedby Act No. 2645, except that it was not signed by three instrumental witnesses besidethe signature of the testator and before the attestation clause, and this fact is the groundupon which the petition was denied.

The document in question, Exhibit A, appears to have been signed by Simplicio Sala byorder of the testator, whose name is before the said signature, by reason of the latter'sincapacity on account of his weakness and the trembling of his hand, the testator alsostating that he directed said Simplicio Sala to sign it in his name and in the presence ofthree witnesses who also signed with him at the bottom of said document, and on the

left margin of each of its three pages correlatively numbered in letters by Sala in thename of the testator Tan Diuco and by the witnesses therein mentioned, named PabloMaturan, Ladislao Fenomeno, and Enrique Pearedondo. After the signature of thetestator, Tan Diuco by Simplicio Sala, the following paragraph appears:

We, the undersigned witnesses to the forgoing will, do hereby state that thetestator signed this will and each of its sheets in the presence of all and each of


2/36

us, and we and each of us likewise did sign this will and all of its sheets in thepresence of the testator and each of us, witnesses.

"TAN DIUCOBy "SIMPLICIO SALA

"LADISLAO FENOMENO"PABLO MATURAN"ENRIQUE PEAREDONDO"

Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, provides,indeed, among the necessary requirements before a will can be probated, that it beattested and signed by three or more credible witnesses in the presence of the testatorand of each other. And said section, as amended, further provides as follows:

* * * The testator or the person requested by him to write his name and theinstrumental witnesses of the will, shall also sign, as aforesaid, each and every

page thereof, on the left margin, and said pages shall be numbered correlativelyin letters placed on the upper part of each sheet. The attestation shall state thenumber of sheets or pages used, upon which the will is written, and that fact thatthe testator signed the will and every page thereof, or caused some other personto write his name, under his express direction, in the presence of threewitnesses, and the latter witnessed and signed the will and all pages thereof inthe presence of the testator and of each other.

Instrumental witness, as defined by Escriche in his Diccionario Razonado deLegislacion y Jurisprudencia, volume 4, page 1115, is one who takes part in theexecution of an instrument or writing.

At present and under the laws now in force, particularly Act No. 2645 amendatory tosaid section 618 of the Code of Civil Procedure, when a will is to be executed, thetestator draws or writes it personally or through another person and signs it alsopersonally, or if he is physically incapacitated, as in the instant case, through anotherperson who may or may not be the one who prepared or wrote the will, that is, thedocument constituting the testator's last will and testament. The will having thus beenprepared and before it is signed by the testator or the person acting in his stead, or theone directed by him to sign it in his name, in which case the name of the testator iswritten before that of the signer, as above stated, in order that said document may havethe character of a valid will, the testator gathers three or more credible witnesses andtells them that the contents of said document is his will, without informing them of itscontents, and then the testator, or the person directed by him to do so, signs it in thepresence of the testator and of each other, and the testator or the person acting in hisstead, as well as the three witnesses sign on the left margin of each page or sheet,which must be numbered correlatively in letters on the upper part of the page. Thesewitnesses are the witnesses, referred to in the aforesaid law as instrumental witnesses,for the simple reason that they took part in the execution of an instrument or documentknown as will, their participation being limited to the acts aforementioned.


3/36

In dealing with attestation, said section 618 of the Code of Civil Procedure, as amendedby Act No. 2645, does not say that said witnesses must be different from those whosigned the attestation clause, for in the first part of said section, after speaking of thesignature of the testator or the person signing in his place, it adds, "and attested andsubscribed by three or more credible witnesses in the presence of the testator and of

each other," from which it clearly follows that the same witnesses who signed on the leftmargin of each page of the document presented by the testator to them as his will, mustbe the ones who should sign the attestation clause, inasmuch as they alone can certifythe facts to be stated in said clause, for having taken a direct part therein, as they sawthe testator sign the will, or the person requested by him to sign all the sheets of the will,that is, the document constituting his last will and testament, and affirm that it wassigned under his express direction in the presence of said witnesses and that all thesheets thereof had also been signed by them in the presence of said testator and ofeach of them, as stated in the attestation clause of the will of the deceased Tan Diuco,with the other details appropriate in said clause.

Besides, as may be seen, the said three witnesses who signed the attestation clause,did so also on the left margin and beside the signature of the testator or of SimplicioSala who signed by order of the latter, and if account is taken of the fact that thesewitnesses are "instrumental" witnesses, as above demonstrated, and they have madereference to their own signatures, as well as that of the testator and of the person whosigned by the latter's order below the attestation clause, it is evident that in the instantcase, it is merely a matter of technicality devoid of any importance as to the probate ofthe will that said witnesses are called instrumental witnesses, as if they were differentfrom those who have to sign the attestation clause, for all of them are but the samewitnesses; and, as this court held in the case of Abangan vs. Abangan (40 Phil., 476),"The object of the solemnities surrounding the execution of wills is to close the dooragainst bad faith and fraud, to avoid substitution of wills and testaments and toguarantee their truth and authenticity. Therefore the laws on this subject should beinterpreted in such a way as to attain these primordial ends. But, on the other hand, alsoone must not lose sight of the fact that it is not the object of the law to restrain andcurtail the exercise of the right to make a will. So when a interpretation already givenassures such ends, any other interpretation whatsoever, that adds nothing but demandsmore requisites entirely unnecessary, useless and frustative of the testator's last will,must be disregarded;" which doctrine must be applied in this case, in view of the factsherein mentioned and what has been above demonstrated.

For all of the foregoing, the order appealed from is reversed, and the document, ExhibitA, presented by the proponent as the last will and testament of the deceased Tan Diucois admitted to probate, without special finding as to costs of both instances. So ordered.

Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.


4/36


Manila

EN BANC

G.R. No. L-21151 February 25, 1924

In re will of Antonio Vergel de Dios, deceased.RAMON J. FERNANDEZ,petitioner-appellant,HERMELO VERGEL DE DIOS and SEVERINA JAVIER,legatees-appellants,vs.FERNANDO VERGEL DE DIOS, ET AL.,opponents-appellees.

Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough forappellants.

Eusebio Orense & Antonio M. Opisso for appellees.

ROMUALDEZ, J .:

The question in this case is as to the validity of the document Exhibit A as a will, whichwas propounded by Ramon J. Fernandez for probate, and contested by FernandoVergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court of First Instance ofManila having denied its probate.

The applicant takes this appeal, assigning error to the action of the lower court inholding the attestation fatally defective and in not finding Act No. 2645 void.

The defects attributed to the will by the contestants are as follows, to wit:

(a) It was not sufficiently proven that the testator knew the contents of the will.

(b) The testator did not sign all the pages of the will.

(c) He did not request anybody to attest the document as his last will.

(d) He did not sign it in the presence of any witness.

(e) The witnesses did not sign it in the presence of the testator, or of each other,nor with knowledge on the part of the testator that they were signing his will.

(f ) The witnesses did not sign the attestation clause before the death of thetestator.

(g) This clause was written after the execution of the dispositive part of the willand was attached to the will after the death of the testator.


5/36

(h) The signatures of the testator on page 3 of Exhibit A are not authentic.

The evidence sufficiently shows that when Attorney Lopez Lizo read the will to thetestator, the latter's mind was perfectly sane and he understood it: that he signed all thepages of the will proper, although he did not sign the page containing the attestation

clause; that while he did not personally call the witnesses, yet the latter were invited byAttorney Lopez Lizo to act as such in his presence. The law does not require that thetestator precisely be the person to request the witnesses to attest his will. It was alsosufficiently established in the record, beside being stated in the attestation clause, thatthe testator signed the will in the presence of the three witnesses and that the latter, inturn, signed it in the presence of the testator and of each other, the testator knowingthat the witnesses were signing his will; that the witnesses signed the attestation clausebefore the death of the testator; that this clause, with the names of the witnesses inblank, was prepared before the testator signed the will, and that the sheet containingsaid clause, just as those of the will proper, was a loose sheet, and that all the foursheets of which the will Exhibit A was actually composed were kept together and are the

very ones presented in this case; and finally, that the signatures of the testator on page3 of said exhibit are authentic.

It thus appearing from the record that there are no such defects as those mentioned bythe opponents, and it having been proven that the testator executed said will in alanguage known by him and consciously, freely and spontaneously, it would seenunnecessary to go further, and the matter might be brought to a close right here, byholding the will in question valid and allowable to probate, were it not for the fact that thetrial court and the opponents questioned the sufficiency and validity of the attestationclause because the sheet on which it is written is not numbered, and it is not statedthere that the testator signed on the margin of each sheet of the will in the presence of

the three witnesses, or that the latter signed it is the presence of the testator and ofeach other, and specially because said attestation clause is not signed by the testatoreither at the margin or the bottom thereof.

As to the numbering of the sheet containing the attestation clause, it is true that it doesnot appeal on the upper part of the sheet, but it does not appear in its text, the pertinentpart of which is copied hereinafter, with the words, having reference to the number ofsheets of the will, underscored, including the page number of the attestation:

* * * We certify that the foregoing document written in Spanish, a languageknown by the testator Antonino Vergel de Dios, consisting of three sheet actuallyused, correlatively enumerated, besides this sheet . . . .

If, as stated in this clause, the foregoing document consists of three sheets, besidesthat of the clause itself, which is in singular, it is clear that such a sheet of the attestationclause is thefourth and that the will, including said sheet, has four sheets. Thisdescription contained in the clause in question constitutes substantial compliance withthe requirements prescribed by the law regarding the paging. So it was held by thisCourt in the case ofAbangan vs. Abangan (40 Phil., 476), where the sheet containing


6/36

the attestation, as well as the preceding one, was also not paged. Furthermore the law,as we shall see later on, does not require that the sheet containing nothing but theattestation clause, wholly or in part, be numbered or paged. Consequently this lack ofpaging on the attestation sheet does not take anything from the validity of the will.

Turning now to the question whether or not in this clause it is stated that the testatorsigned on the margin of each sheet of the will, in the presence of the witnesses and thelatter in the presence of each other, let us see what is said in said clause on this point,and to this end its pertinent part is hereinafter transcribed and is as follows:

* * * and he (the testator) signed at the bottom of the aforesaid will in ourpresence and we at his request did the same in his presence and in that of eachother as witnesses to the will, and lastly, the testator, as well as we, aswitnesses, signed in the same manner on the left margin of each sheet.(Emphasis ours.)

The underscored phrase "in the same manner" cannot in the instant case mean, and itin fact means nothing, but that the testator and the witnesses signed on the left marginof each sheet of the will "in the same manner" in which they signed at the bottomthereof, that is, the testator in the presence of the witnesses and the latter in thepresence of the testator and of each other. This phrase in the same manner cannot, inview of the context of the pertinent part, refer to another thing, and was used here as asuppletory phrase to include everything and avoid the repetition of a long and difficultone, such as what is meant by it. The same section 618 of the Code of Civil Procedure,in order to avoid the repetition of the same long phrase about the testator having signedin the presence of the witnesses and the latter in the presence of each other, resorts toa similar expression in the second paragraph and says, "as aforesaid."

Concerning the absolute absence of the signature of the testator from the sheetcontaining the attestation clause, this point was already decided in the above cited caseofAbangan vs. Abangan, where this court held that:

The testator's signature is not necessary in the attestation clause because this,as its name implies, appertains only to the witnesses and not to the testator.

In that case ofAbangan vs. Abangan it was held that the signature of the testator is notnecessary in the attestation clause, but the theory is not announced that such a clauseis unnecessary to the validity to the will.

For this reason such doctrine does not annul the judgment in the case of Uy Coque vs.Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among others, was laiddown that the attestation clause is necessary to the validity of the will. One of the pointson which greatest stress was laid in that case Uy Coque is that the requirements of thelaw regarding the number of the pages used, the signing of the will and of each of itspages by the testator in the presence of three witnesses, and the attestation and signingof the will and of each of its pages by the witnesses in the presence of each other


7/36

cannot be proven aliunde but by the attestation clause itself which must express thecomplaince of the will with such requirements. But it was not held in that case of UyCoque that the signature of the testator was necessary in the attestation clause, norwas such point discussed there, which was the point at issue in the case of Abangan vs.

Abangan, supra.

The appellees, however, argue that such clause in the case ofAbangan vs.Abangan begins at the bottom and on the same sheet in which the testamentaryprovision terminated, that is to say, the will properly speaking. Even then if it is intendedto commit misrepresentation or fraud, which are the things that with the requirements ofthe law for the making and attesting of wills it is intended to avoid, it is just the same thatthe clause; as in the case ofAbangan vs. Abangan, begins at the bottom of the willproperly speaking, as, like the case before us, it is wholly contained in a separate sheet.The fact is that this separate sheet, containing the attestation clause wholly or in part, isnot signed any place by the testator in the case ofAbangan vs. Abangan, as it is not inthe present case.

Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains threeparagraphs, of which the first enumerates in general terms the requirements to be metby a will executed after said Code took effect, to wit, that the language or dialect inwhich it is written be known by the testator, that it be signed by the latter or by anotherperson in the name of the testator by his express direction and in his presence, and thatit be attested and signed by three or more credible witnesses in the presence of thetestator and of each other.

These general rules are amplified in the next two paragraphs as to the specialrequirements for the execution of the will by the testator and the signing thereof by the

witnesses, with which the second paragraph of the section deals, and as to theattestation clause treated in the third and last paragraph of said section 618.

For this reason the second paragraph of this section 618 says:

The testator or the person requested by him to write his name and theinstrumental witnesses of the will, shall also sign, as aforesaid, each and everypage thereof, on the left margin, and said pages shall be numbered correlativelyin letters placed on the upper part of each sheet.

These are the solemnities that must surround the execution of the will properlyspeaking, without any reference whatsoever to the attestation clause not treated in thissecond paragraph. It is in this second paragraph which deals only with the will (withoutincluding the attestation clause), that the signature or name of the testator and those ofthe witnesses are mentioned as necessary on the left margin of each and everyone ofthe sheets of the will (not of the attestation clause), as well as the paging of said sheet(of the will, and not of the attestation clause which is not yet spoken of).


8/36

Now, are the signatures of the testator and the paging of the will also necessary in theattestation clause? Let us see the last paragraph of this section 618 of the Code whichalready deals with the requirements for the attestation clause. This last paragraph readsthus:

The attestation shall state the number of sheets or pages used, upon which thewill is written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under his expressdirection, in the presence of three witnesses, and the latter witnessed and signedthe will and all pages thereof in the presence of the testator and of each other.

As may be seen this last paragraph refers to the contents of the text of the attestation,not the requirements or signatures thereof outside of its text. It does not require that theattestation be signed by the testator or that the page or sheet containing it benumbered.

From this analysis of our law now in force it appears:First. That the will must have an attestation clause as a complement, withoutwhich it cannot be probate and with which only not aliunde (Uy Coque vs. NavasL. Sioca , supra) may the requirements to be stated in its text be proven. Theattestation clause must be prepared and signed, as in the instant case, on thesame occasion on which the will is prepared and signed, in such a way that thepossibility of fraud, deceit or suppression of the will or the attestation clause bereduced to a minimum; which possibility always exists, as experience shows, inspite of the many precautions taken by the legislator to insure the true and freeexpression of one's last will.

Second. That the will is distinct and different from the attestation, although bothare necessary to the validity of the will, similar, in our opinion, toa document which is not public so long as it is not acknowledged before a notary,the document being a distinct and different thing from the acknowledgment, eachof which must comply with different requisites, among which is the signature ofthe maker which is necessary in the document but not in the acknowledgmentand both things being necessary to the existence of the public document.

Third. That the will proper must meet the requirements enumerated in the secondparagraph of section 618 of the Code of Civil Procedure.

Fourth. That the text of the attestation clause must express compliance with therequirements prescribed for the will.

In the case at bar the attestation clause in question states that the requirementsprescribed for the will were complied with, and this is enough for it, as such attestationclause, to be held as meeting the requirements prescribed by the law for it.


9/36

The fact that in said clause the signature of the testator does not appear does not affectits validity, for, as above stated, the law does not require that it be signed by thetestator.

We find no merit in the assignment of error raising the question as to the validity of Act

No. 2645, which is valid. For the purposes of this decision, it is not necessary to reasonout this conclusion, it being sufficient for the adjudication of this case to hold the firsterror assigned by the appellants to have been demonstrated.

The foregoing conclusions lead us to hold, as we do here by hold, that the documentsExhibit A, as the last will and testament of the deceased Antonio Vergel de Dios, meetsall the requirements prescribed by the low now in force and therefore it must be allowedto probate as prayed for by the petitioner.

The judgment appealed from is reversed, and it is ordered that the lower court proceedwith the probate of the will Exhibit A in accordance with law, without express

pronouncement as to costs. So ordered.Street, Malcolm, Avancea and Johns, JJ., concur.

Separate Opinions

OSTRAND, J., dissenting:

I dissent and think that the judgment appealed from should have been affirmed. In myopinion, the decision of the Court affords a striking illustration of the old adage that "ahard case makes bad law."


10/36

G.R. No. 46995 June 21, 1940

In re testate estate of the deceased Hilarion Martir.HERMOGENES N. MARTIRapplicant-appellee, vs. ANGELA MARTIR,oppositor-

appellant.

Zoilo Hilario for appellant.Hilado, Lorenzo and Hilado for appellee.

STREET,LAUREL, J .:chanrobles virtual law library

This is an appeal from the decision of the Court of First Instance of Occidental Negrosin special proceeding No. 7205, rendered on July 9, 1938, allowing the probate of thelast will and testament (Exhibit AA) of Hilarion Martir and confirming the. appointment ofHermogenes Martir as the executor..chanroblesvirtualawlibrary chanrobles virtual lawlibrary

The following pertinent facts are disclosed by the record: On December 22, 1936,Hermogenes Martir filed a petition with the Court of First Instance of Occidental Negrosfor the probate of the will of his deceased father, Hilarion Martir, the document beingthen identified as Exhibit AA. The said document appears to have been prepared byattorney and notary public, Esteban H. Korral, in the Visayan dialect, with one originaland two carbon copies. On August 14, 1935, the will was signed by said testator andthe three attesting witnesses: Valeriano Gatuslao, Dionisio Gonzaga, and Olimpio de laRama. It was decided that one of the witnesses read the will to the testator, and for thispurpose Dionisio Gonzaga was selected. This was done. After the reading to thedocument the testator wrote on the space immediately beneath the last paragraph of

the instrument on page 3, the following: "Murcia, Occidental Negros - Agosto 14. 1935."This addition in the handwriting of the testator appears both in the original Exhibit AAand in the carbon copy Exhibit AA-1. The testator than proceeded to sign the original onthe left margin of the four pages and at the foot of its body over his typewritten nameand surname on page 3 thereof in the presence of the above-named attestingwitnesses. Then the witnesses, one after another and in the presence of the testatorand of each other. signed each and every one of the four pages on the left margin,Olimpio de la Rama also signing at the foot of the attestation clause on page 3, andValeriano Gatuslao and Dionisio Gonzaga likewise affixed their signatures at the foot ofthe same clause, but, for lack of conveniently sufficient space on page 3, on the upperpart of page 4. Below the signatures of the witnesses Gatuslao and Gonzaga on theupper part of page 4 there appears a "Nota" over the signature of the testator containingcertain instruction to his children. Under this note appears the declaration signed by theoppositor Salvacion Angela expressing conformity to the conditions set forthabove.chanroblesvirtualawlibrary chanrobles virtual law library

On January 26, 1937, an opposition was entered to the probate of this will by SalvacionAngela, daughter of the testator. The opposition was amended on February 12, 1937,alleging as principal grounds that the will was not executed and signed by the witnesses


11/36

in accordance with law; that the signatures of the testator were obtained through deceitand fraud and that undue influence was used by the proponent Hermogenes Martir overthe testator. After hearing, the trial court allowed the will to probate and, as stated,confirmed the appointment of Hermogenes Martir asexecutor.chanroblesvirtualawlibrary chanrobles virtual law library

On appeal the oppositor-appellant makes an assignment of seven errors which may becondensed into the following: ( a) that the will was void because the first sheet is notnumbered as required by law; ( b) that Arabic numerals, instead of letters, were used inthe pagination of the other sheets of the will, ( c) that fraud and undue influence wereused on the testator, and ( d) that the attestation clause was insufficient inlaw.chanroblesvirtualawlibrary chanrobles virtual law library

The first sheet of the will bears no number and the oppositor claims that thiscircumstance is fatal to its validity. The authenticity of this unnumbered page, however,is not questioned, nor the genuineness of the signatures of the testator of the witnesses

on this sheet. There is no suggestion either that the deceased had executed another willeither before or after the execution of the controverted will. The principal object of therequirement with reference to the numeration of the pages of the will is to forestall anyattempt to suppress or substitute any of the pages thereof. In the absence of collusionor fraud and there being no question regarding the authenticity of the first page and thegenuineness of the signatures appearing thereon, we hold that the mere fact that thefirst, sheet is unnumbered is not sufficient to justify the invalidation of the will(Abangan vs. Abangan, 40 Phil., 476 Unson vs. Abella, 43 Phil.,504).chanroblesvirtualawlibrary chanrobles virtual law library

With reference to the use of Arabic numerals instead of letters on the of the will, this

point is no longer controversial. Arabic numerals are sufficient to indicate the correlationof the pages and to apprise abstraction of any of them. (Unson vs. Abella, 43 Phil., 504;Aldaba vs. Roque, 43 Phil., 378).chanroblesvirtualawlibrary chanrobles virtual lawlibrary

On the point of fraud, deceit and undue influence, the lower court found to the contrary.Upon the other hand, it appears that the oppositor waived her right to present evidenceon this point. It should also be observed that the testator lived for over a year after theexecution of the will and the fact that he did not change or revoke the will is verysignificant. Letters Exhibits "EE" and "LL" written by the oppositor and her husband tothe deceased furnish an explanation for the apparent discriminatory attitude of thetestator.chanroblesvirtualawlibrary chanrobles virtual law library

The opposition to the attestation clause is based on two grounds: (1) the statement ofthe attestation clause that the will consists of four pages when it is written on sheet and(2) the said clause does not recite that the testator signed each and every page of thewill in the presence of the witnesses. An examination, however, of Exhibit AA showsthat the will really consists of four pages, the first page bearing no number and the other


12/36

three pages correlatively numbered in Arabic numerals. The attestation clause asfollows:

This will is composed of four pages and had been made and published by HilarionMartir who was the testator therein named, and that will was signed at the foot and on

the left margin of each and every page thereof in the presence of the said witnesses.

We are of the opinion that when the witnesses certified in the attestation clause that thesame was signed in their presence, they could not possibly refer to another person thanthe testator himself.chanroblesvirtualawlibrary chanrobles virtual law library

In conclusion, we find that the circumstances point to the execution of the contested will,and as there is no evidence of bad faith or fraud, the will should be admitted to probatealthough it may suffer from minor imperfections of language or from other non-essentialdetails (Teofila Adeva Vda. de Leynez vs. Ignacio Leynez, G. R. No. 46097,promulgated October 18, 1939).chanroblesvirtualawlibrary chanrobles virtual law library

The judgment appealed from is affirmed, with costs against the oppositor-appellant. Soordered.

Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.


13/36

****NOTE ABOUT THIS CASE: (IN FULL SPANISHORIGINAL TEXT)

TRANSLATED IN ENGLISH VIA INTERNET

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

GR No. L-47931 June 27, 1941

Probate of the late Rev. Eleuterio P. Pilapil. ADRIANO MENDOZA,petitioner andappellee,vs.. CALIXTO Pilapil AND OTHERS,opponents and appellants.

Filemon Sotto and D. D. G. Numeriano Estenzo in representation of the appellants.Messrs. Alonso and Alonso for appellee.

DIAZ, J .:

The main issues that opponents have us for resolution, to appeal the decision of theCourt of First Instance of Cebu, dictated on the record Probate Court No. 407 of that

can be reduced to siguintes.

1. If the Court of Cebu could name the March 4, 1939, the appellee as specialadministrator of the estate of the decedent relict Eleuterio P. Pilapil (probate record No.407), being as it was then acting as administrator of the same goods from the February7, 1939, Appellant Calixto Pilapil, who promoted the day before, the record of the samedeceased Intestate Eleuterio P. Pilapil, in that Court (file No. 399, Court of Cebu); and

2. Meetings as appropriate and necessary as the legalization provision of a will or lastwill of the late Eleuterio P. Pilapil, the cars obrante document as Exhibit A is a duplicateof the coal Exhibit C.

The relevant facts to be taken into account to resolve issues are proposed, according todetach from the appealed decision and the same documents that the Court declare tobe last will and testament of the late Eleuterio P. Pilapil, which are reported below :

The Eleuterio P. Pilapil, being parish priest of Mualboal of the Province of Cebu, died inthe city of that name on December 6, 1935. Absence of any submitted his will after hisdeath, at least until early February 1939, his brother Calixto Pilapil promoted the 6th of


14/36

said month and year, the case of intestacy No. 399 to ask fuesenombrado relictadministrator of the goods. Received proof that he had submitted the request forelindicado end prior publication of notices presritos by law, and the court hearing prior tothe quecomparecieron to oppose it, among which were the same and Simeona appelleePilapil, the Court granted it, thereupon appointed him administrator of the

Intestate. Within a few days, or the March 4, 1939, the appellee in turn promoted file No.407, previously has made mention, to demand the legalization as a testament of the lateEleuterio P. Pilapil, the Exhibit A that Carbon is the duplicate to the Exhibit C. Therebetween the clauses of these two documents, which are inserted below for theirrelevance to the issues raised and also the importance

I, Eleuterio Pilapil, Priest Natural Apostolic Roman Catholic Church, of sixty-eightyears old, Liloan currently Parish Priest of the Parish of Mualboal, Province ofCebu, IF, enjoying health and FULL USE OF MY MENTAL POWERS, herebypublish, grant and declare the following as MY LAST WILL AND TESTAMENT:

ART. FIRST: I institute and appoint Mr. Adrian Mendoza, my political nephew,married, of legal age and a resident of the Municipality of Liloan, Cebu Province,IF, EXECUTOR-EXECUTOR of this my Last Will and Testament: Provided, Thatin case of inability, negligence or other cause with which embarrasses enforcethis my Testament and Last Will, by a guarantor, my disposal and ordered to bereplaced in the office of executor, executor of this my Testament and Last Will,my cousin, Jose Cabatingan, married, of legal age, resident of MualboalMunicipiop, Province of Cebu, IF, who was in charge and will make this myfollowing provisions are met:

xxx xxx xxx

. 2nd my disposal and command this my Last Will and Testament was notventilate in court, since this Last Will and Testament, simply confirms, affirms andassures the legitimacy of the documents for the sale of my property;

xxx xxx xxx

ART. SECOND: I hereby state that I do this My Last Will and Testament, whichconfirms, affirms and assures the legitimacy of documents given to my buyersconsists of two items; contains sixteen provisions and is written in three pages;

xxx xxx xxxCebu, Cebu, IF, for today November 27, 1935.

(Signed) ELEUTERIO Pilapil Testator;

at the end thereof (exhibits A and C), there witnessing this clause:


15/36

When shall read:

God bless you,

We who signed below, we state: That the pre-insert and Testament Last Will was

subscribed and sworn to by the said Testator, Rev. Eleuterio P. Pilapil in thepresence of us all pray and said Testator, each signed of us in the presence ofus, here in Cebu, Cebu, IF, for today November 27, 1935.

(Signed) WENCESLAO Pilapil Witness

MARCELO Pilapil Witness

EUGENE K. Pilapil Witness

The two documents, exhibits A and C consist of three pages; and on the left of each ofthe two first range; listed firms that are at the end of the main body of these documentsand their attestation clause; and are, according to the evidence, signatures of the lateEleuterio P. Pilapil, and witnesses Wenceslao Pilapil, Marcelo Pilapil and Eugene K.Pilapil.

In place of the date both documents as your witnessing clause, is written the word"Cebu" on that deal but scraping is still obvious that said "Mualboal"; and the numeral"27" and the name also appear more "November", the latter written on a scraped wordthat can also be seen even without any difficulty, at least in Exhibit A, which says:"October". In the last paragraph on page 2 below which appears in the first two lines ofthe next page (page 3), which is the last, there are the following express mention"contains sixteen provisions and is written on three pages." At the bottom of the pages(1) and (2) there respectively these notes: "Go to the 2nd page."; "Pass through 3.Pages". And it should be noted that both the one and the other of the aforementionedExhibits A and C, no more than two articles ("Art First" and "Second Section") anddieceseis provisions.

The grounds on which the appellants rely to argue that legalization does not come fromany of the two specified documents as a testament of the late Eleuterio P. Pilapil, arethese:

( a) They contain erasures and alterations to the appellee leave to explain;

( b) That has not been proven that the deceased, - prescindimiento of what is on thosedocuments exhibits A and C - age was responsible for testing;


16/36

( c) It is not proved that the deceased owned the Spanish which is the language inwhich those documents appear written;

( d) that one of the clauses of these documents is no prohibition that aired on slabCourts;

( e) None of the two has been prepared, signed and witnessed in accordance with theprovisions of Article 618 of the Code of Civil Procedure.

Regarding the first question, it must be said that, according to tells us the same part ofthe appellants Appeals, the two cases Nos. 399 and 407 were promoted in two differentchambers of the Court of First Instance of Cebu. The first was promoted in DivisionIII; and the last, in Room II. Hearing Judge of said Salas had a direct relationshipbetween unto and another provided that the two of them from recognizing by a singleJudge; hence both are considered as one to avoid what the aforementioned judge said:"inconsistency in the administration of the goods of the deceased," referring to; late

Eleuterio P. Pilapil.Certainly do not miss Cebu reason the Court to appoint special manager in case No.407, the appellee, because the documents were treated there as a testament to legalizeand disposition of last will of the late Eleuterio P. Pilapil, has commissioned Express it tobe. Also, there was not no law that prohibits the courts hearing a probate record orintestate, appoint an administrator over; and, if it happened that I leave without effectthe appointment of the appellant as administrator, then the two mentioned records weremelted. But still; if the purpose of the appellants to propose the matter of which we arespeaking, is to rescind the appointment issued to appellee as special administrator, isvain and vain to be said purpose, because you insist on the amounts to be appealing to

an order of the Court to appoint a special administrator; and the law does not allowappeal against orders of that nature. Is the provision of strict law that says, "Do notallow the appeal against the appointment of the special administrator." (Art. 660, Act No.190.)

In addition to all this must be said that if there was an error in naming appellee asspecial administrator, for the reason that other property was already appointed by thecourt, the error, if such it can be called, has not been so nature that has caused anyharm to anyone, least of Probate of the late Eleuterio P. Pilapil.

Scratches and changes that are noted in exhibits A and C are some facts to which now,for the first time, and in this instance, is to llamr attention, when it should have beendone while the case was still in court of its origin. We can not take them into account inthe present stage of the proceedings because, assuming that already existed then, canand should be said, but did not say in express terms the Court of Cebu, I believe thatnot vitiate these documents; it is presumption rebuttable that"all the facts related to theissues discussed at trial were exposed to and appreciated by the court." (Art. 334, par.16, Law No. 190.) And do not vitiated indeed, because it follows the samecircumstances, they did just to put things in their proper place. The two exhibits A and C


17/36

were prepared by the late Eleuterio P. Pilapil in Mualboal where was parish priest,before being transladado to be treated for his illness that caused her death, CebuSouthern Islands Hospital, where he died. Being based on these facts the Court thatwere tested in court, declare as follows: "The intervention of the three instrumentalwitnesses of the document took place in a haphazard manner, on the occasion in which

they were to visit him Eleuterio Pilapil who was ill at the Southern Islands Hospital, andthere the deceased begged them to act today to witness the document and then hadprepared. "

In preparing the, being in Mualboal was no more than natural that expressed in it thatthere were prepared, and leave blank the date but still put the name of the month inwhich they were put in clean, ie October 1935.

The age of the testator as to whether they spoke Spanish is the language in which thetwo exhibits, or do not appear written, it must be said that a priest and parish priest ofMualboal, Cebu, must be presumed that had the old fundademente competent to make

a will, and who understood the Spanish spoken and therefore is generally known that tobe a parish priest of one must be a priest, and to be, many years of study in seminarswhere Spanish is spoken are required as official language as English. Moreover, noevidence has been proven that the testator did not understand the language.

The disposition of the testator that his "Last Will and Testament not be heard by theCourt" can not strip the courts of their authority to determine if your will is referredlegalizable or not. There are stakeholders in one way or another on an issue, which mayconfer or remove the jurisdiction and authority to resolve Trubunales and decide whatyou want the same law is resolved and decided. Please note that the law on penaltykicks, which the Court delivered the Wills made by a testator dies after this, by the

person entrusted with custody, so they certainly can determine whether yourlegalization and at the same time to dispose of his property according sends himthere; or whether the contract should be declared dead intestate, not being susceptibleof legalization which would have granted. (. Arts. 626 to 631, Act No. 190) In addition,the testator not being a lawyer, it is no wonder that has been placed in his will the banon that - using his own words - "be heard by the Court" .

And as to the exhibits A and C can not be legalized because they were not preparedand signed in accordance with the law, saying that their pages are not numbered withletters; and because in its clause witnessing not expressed that they were signed by thethree instrumental witnesses, in the presence of the testator, it is sufficient to callattention to the fact that the bottom of the first page there are lyrics on the note clearlystates: " Go to the 2nd page. "; and the fact that, at the bottom of the second page,there is this other note: "Go to the 3rd page.";sufficient and also draw attention to thefirst two lines of the third page is the last, where, to complete the arrangement that iscontained in the last paragraph of the previous page, or second, it is stated:


18/36

. . . consists of two items; CONTAINSsixteen provisions and is writtenon three pages,

which agrees closely with the true facts as they appear in the aforementioned two

exhibits, for indeed contain two articles and sixteen provisions, not more, not less.

In an attestation clause and another copy of the object in question Testament, by thethree instrumental witnesses who signed it states that

the pre-insert Testament and Last Will,has been subscribed and sworn declared bythe Testator, Rev. Eleuterio P. Pilapilin the presence of us all;

and row followed by the same witnesses who also says:

to beg of the testator, signedeach of us, here in Cebu, Cebu,IF, for today November 27, 1935.

The fraze "said Testator to pray" that attached to the signed and signed his will in thepresence of the attesting witnesses, permits and justifies the inference that the testatorwas present when the last alli affixed their respective signatures.

The purpose of the law to establish the formalities required authenticity is undoubtedlyensure and guarantee their authenticity against bad faith and fraud, to prevent those

who are not entitled to succeed the testator, and you happen to win-win legalization ofsame. It has fulfilled that purpose in the event that there has been talk that, in the samebody of the will and the same page where the attestation clause appears, or the third,expresses the will consists of three pages and why one of the first two takes note partlylyrics, partly the same and second pages.These facts evidently excludes all fear,suspicion, or any hint of doubt has been replaced some of its pages to another.

Something more in the case of Nayve againstMojal and Aguilar (47 Phil., 160), whichwas clarified by the cause of Gumban againstGorecho and others (50 Phil., 31), thereis in this case because there there was but notes: "Pag 1"; "Pag 2"; "Pag 3"; and "Pag4" on the respective side of the four pages that include, and in this there is the

aforementioned data and there is also the record inserted in the first two lines of thethird page of the exhibits A and C, that they are composed of three pages, and containtwo articles and sixteen provisions.

They are therefore the perfect application if it is what we said in the causes ofRodriguez againstYap, GR No. 45924, May 18, 1939; Blessed and againstDeGorostiza (57 Phil., 456). We said in these cases, respectively, as follows:


19/36

The wording of the attestation clause in this will not technically free repairs, but issubstantially a law enforcement.

We maintain the view that should be required strict compliance with thesubstantive requirements of the will, to ensure its authenticity, but at the same

time we believe that defects that do not affect the order should not be taken intoaccount and the other part , be taken into account, could thwart the will of thetestator.(Rodriguez againstYap, supra.)

It should not be allowed to hinder the legal formalities employing good commonsense in the consideration of wills and to frustrate the wishes of the deceasedsolemnly expressed in their wills, as to which there is not even granting shadowof bad faith or fraud. (Blessed againstDe Gorostiza, supra.)

For these reasons, finding according to law the appealed decision of the Court of FirstInstance of Cebu, hereby confirm it sentenced the appellants to pay the costs. So is

ordered.Avancea, CJ, Diaz, Laurel, and Horrilleno Moran, MM.,are compliant.

Separate Opinions

MORAN, M.,dissenting:

The attestation clause is as follows:We who signed below, we state: That the pre-insert Testament and Last Will, hasbeen subscribed, and sworn to by the said Testator, Rev. Eleuterio P. Pilapil inthe presence of us all pray and said Testator, each signed of us in the presenceof us, here in Cebu, Cebu, IF, for today November 27, 1935.

There is nothing in this clause that the attesting witnesses signed the will in thepresence of the testator and, therefore, the will can not be probated. But the majorityargues that "the phrase 'a prayer of said testator,' attached to it signed and signed hiswill in the presence of the attesting witnesses, allowed and justified inference that the

testator was present when the last stamped their alli signatures. " But we have saidrepeatedly that the formalities required of a will by law can not be established byevidence aliunde. Therefore, inference tests are inadmissible, mostly if the inference isnot quite adjusted to the logic.

For these reasons, I dissent from the opinion of the majority.


20/36


Manila

EN BANC

G.R. No. L-1787 August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ,petitioner-appellee,vs.AGUSTIN LIBORO,oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.Ramon Diokno for appellee.

TUASON, J .:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully theprobate of what purports to be the last will and testament (Exhibit A) of Don SixtoLopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost sixmonths after the document in question was executed. In the court below, the presentappellant specified five grounds for his opposition, to wit: (1) that the deceased neverexecuted the alleged will; (2) that his signature appearing in said will was a forgery; (3)that at the time of the execution of the will, he was wanting in testamentary as well asmental capacity due to advanced age; (4) that, if he did ever execute said will, it was notexecuted and attested as required by law, and one of the alleged instrumentalwitnesses was incapacitated to act as such; and it was procured by duress, influence of

fear and threats and undue and improper pressure and influence on the part of thebeneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, andthe herein proponent, Jose S. Lopez; and (5) that the signature of the testator wasprocured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words:"That the court a quoerred in holding that the document Exhibit "A" was executed in allparticulars as required by law." To this objection is added the alleged error of the court"in allowing the petitioner to introduce evidence that Exhibit "A" was written in alanguage known to the decedent afterpetitioner rested his case and over the vigorousobjection of the oppositor.

The will in question comprises two pages, each of which is written on one side of aseparate sheet. The first sheet is not paged either in letters or in Arabic numerals. This,the appellant believes, is a fatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and toafford means of preventing the substitution or of defecting the loss of any of its pages.(Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission to put a page


21/36

number on the first sheet, if that be necessary, is supplied by other forms ofidentification more trustworthy than the conventional numerical words or characters.The unnumbered page is clearly identified as the first page by the internal sense of itscontents considered in relation to the contents of the second page. By their meaningand coherence, the first and second lines on the second page are undeniably a

continuation of the last sentence of the testament, before the attestation clause, whichstarts at the bottom of the preceding page. Furthermore, the unnumbered page containsthe caption "TESTAMENTO," the invocation of the Almighty, and a recital that thetestator was in full use of his testamentary faculty, all of which, in the logical order ofsequence, precede the direction for the disposition of the marker's property. Again, aspage two contains only the two lines above mentioned, the attestation clause, the markof the testator and the signatures of the witnesses, the other sheet can not by anypossibility be taken for other than page one.Abangan vs. Abangan,supra,and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the

matter of the credibility of the witnesses is assailed under this heading. On the meritswe do not believe that the appellant's contention deserves serious consideration. Suchcontradictions in the testimony of the instrumental witnesses as are set out in theappellant's brief are incidents not all of which every one of the witnesses can besupposed to have perceived, or to recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of experimentalpsychology show that the contradictions of witnesses generally occur in thedetails of a certain incident, after a long series of questioning, and far from beingan evidence of falsehood constitute a demonstration of good faith. Inasmuch asnot all those who witness an incident are impressed in like manner, it is but

natural that in relating their impressions they should not agree in the minordetails; hence, the contradictions in their testimony. (People vs. Limbo, 49 Phil.,99.)

The testator affixed his thumbmark to the instrument instead of signing his name. Thereason for this was that the testator was suffering from "partial paralysis." While anotherin testator's place might have directed someone else to sign for him, as appellantcontends should have been done, there is nothing curious or suspicious in the fact thatthe testator chose the use of mark as the means of authenticating his will. It was amatter of taste or preference. Both ways are good. A statute requiring a will to be"signed" is satisfied if the signature is made by the testator's mark. (De Gala vs.Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that thetrial court communicated an abuse of discretion in allowing the appellant to offerevidence to prove knowledge of Spanish by the testator, the language in which the willis drawn, after the petitioner had rested his case and after the opponent had moved fordismissal of the petition on the ground of insufficiency of evidence. It is within thediscretion of the court whether or not to admit further evidence after the party offering


22/36

the evidence has rested, and this discretion will not be reviewed except where it hasclearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the courtwhether or not it will allow the case to be reopenedfor the further introduction ofevidence after a motion or request for a nonsuit, or a demurrer to the evidence, and thecase may be reopened after the court has announced its intention as to its ruling on the

request, motion, or demurrer, or has granted it or has denied the same, or after themotion has been granted, if the order has not been written, or entered upon the minutesor signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced theirrespective direct proofs, they are allowed to offer rebutting evidence only, but, it hasbeen held, the court, for good reasons, in the furtherance of justice, may permit them tooffer evidence upon their original case, and its ruling will not be disturbed in theappellate court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowedwhen it is newly discovered, or where it has been omitted through inadvertence or

mistake, or where the purpose of the evidence is to the evidence is to correct evidencepreviously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J.,160-163.) The omission to present evidence on the testator's knowledge of Spanish hadnot been deliberate. It was due to a misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for itssilence on the testator's understanding of the language used in the testament. There isno statutory requirement that such knowledge be expressly stated in the will itself. It is amatter that may be established by proof aliunde. This Court so impliedly ruledin Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalogwas ordered although it did not say that the testator knew that idiom. In fact, there was

not even extraneous proof on the subject other than the fact that the testator resided ina Tagalog region, from which the court said "a presumption arises that said Maria Tapiaknew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of DonSixto Lopez is affirmed, with costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.


23/36


Manila

EN BANC

G.R. No. L-17304 May 22, 1922

In re will of Maria Roque y Paraiso, deceased.CEFERINO ALDABA,petitioner-appellee,vs.LUDOVICO ROQUE,opponent-appellant.

Lucero and Tengo for appellant.Vicente Platon for appellee.

VILLAMOR, J .:

It appears from the record of the case that on July 9, 1918, Maria Roque y Paraiso, thewidow of Bruno Valenzuela, resident of the barrio of Mambog, municipality of Malolos,Province of Bulacan, executed her last will and testament in the Tagalog dialect with thehelp of Vicente Platon and in the presence of three witnesses who signed theattestation clause and each of the four pages of the testament. Maria Roque died onDecember 3, 1919, and when her will was filed in court for probate, it was contested byLudovico Roque on the ground that it had not been prepared nor executed in conformitywith the requirements and solemnities prescribed by law.

After due proceedings had been had, the Court of First Instance of Bulacan by itsdecision rendered on February 27th of the following year, pronounced the testament inquestion valid, and ordered its probate, appointing Ceferino Aldaba as the administratorof the estate.

The errors assigned by the appellant are two, to wit: "That each and every folio of thesaid testament is not paged correlatively in letter," and "that the said will lacks theattestation clause required by law."

We have examined document Exhibit 4 which is the will in question and we find at theend thereof the following in Tagalog which translated into English reads:

This document expresses my last and spontaneous will, and is my last will andtestament, which was drawn by the lawyer, Don Vicente Platon, at my direction,and everything contained in this testament has been ordained and directed byme to said Vicente Platon in order that it might be embodied in this testament,and after this testament has been drawn up, I directed him to read it so that Imight hear all its contents, and I have heard and understood all the contents ofthis document which is my last will, wherefore, and not knowing how to write, I


24/36

have requested Don Vicente Platon to write and sign my name in my steadhereon; I declare that this testament is composed of four sheets, actually used,that the sheets are paged with the letter A, B, C, and d, and above my name Ihave placed the thumb mark of my right hand in the presence of the subscribingwitnesses, and that all the witnesses have signed in my presence and of each

other here at Malolos, Bulacan, this 9th day of the month of July, 1918; and I alsodeclare that at my request Don Vicente Platon has written my name on the leftmargin of all pages of this testament, in the presence of the witnesses, and allthe witnesses have also signed all the pages of this testament on the left marginin my presence and that of each other.

X (Her thumb mark)MARIA ROQUE Y PARAISO,

Per VICENTE PLATON.(Sgd.) REGINO E. MENDOZA,

Witness.

(Sgd.) IGNACIO ANIAG,Witness.

(Sgd.) CEFERINO ALDABA.Witness.

In reality, it appears that it is the testatrix who makes the declaration about the pointscontained in the above described paragraph; however, as the witnesses, together withthe testatrix, have signed the said declaration, we are of the opinion and so hold that thewords above quoted of the testament constitute a sufficient compliance with the

requirements of section 1 of Act No. 2645 which provides that:The attestation shall state the number of sheets or pages used, upon which thewill is written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under his expressdirection, in the presence of three witnesses, and the latter witnessed and signedthe will and all the pages thereof in the presence of the testator and of eachother.

In regard to the other assignment of error, to wit, that each of the folios of the saidtestament is not paged correlatively in letters "one." "two," "three," etc., but only with theletters A, B, C, etc., we are of the opinion that this method of indicating the paging of thetestament is a compliance with the spirit of the law, since either one of the two waysabove-mentioned indicates the correlation of the pages and serves to prevent the lossof any of them. It might be said that the object of the law in requiring that the paging bemade in letters is to make falsification more difficult, but it should be noted that since allthe pages of the testament are signed at the margin by the testatrix and the witnesses,the difficulty of forging the signatures in either case remains the same. In other wordsthe more or less degree of facility to imitate the writing of the letters A, B, C, etc., does


25/36

not make for the easiness to forge the signature. And as in the present case there existsthe guaranty of the authenticity of the testament, consisting in the signatures on the leftmarging of the testament and the paging thereof as declared in the attestation clause,the holding of this court in Abangan vs. Abangan (40 Phil, 476), might as well berepeated:

The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills and testaments andto guarantee their truth and authenticity. Therefore the laws on this subjectshould be interpreted in such a way as to attain these primordial ends. But, onthe other hand, also one must not lose sight of the fact that it is not the object ofthe law to restrain and curtail the exercise of the right to make a will. So when aninterpretation already given assures such ends, any other interpretationwhatsoever, that adds nothing but demands more requisites entirely unnecesary,useless, and frustrative of the testator's last will, must be disregarded.

In that case the testament was written on one page, and the attestation clause onanother. Neither one of these pages was numbered in any way; and it was held:

In a will consisting of two sheets the first of which contains all the testamentarydispositions and is signed at the bottom by the testator and three witnesses andthe second contains only the attestation clause and is signed also at the bottomby the three witnesses, it is not necessary that both sheets be further signed ontheir margings by the testator and the witnesses, or be paged.

This means that, according to the particular case, the omission of paging does notnecessarily render the testament invalid.

The law provides that the numbering of the pages should be in letters placed on theupper part of the sheet, but if the paging should be place din the lower part, would thetestament be void for his sole reason? We believe not. The law also provides that thetestator and the witnesses must sign the left margin of each of the sheets of thetestament; but if they should sign on the right margin, would this fact also annul thetestament? Evidently not. This court has already held inAvera vs. Garcia andRodriguez (42 Phil., 145):lvvph1n+

It is true that the statute says that the testator and the instrumental witnessesshall sign their names on the left margin of each and every page; and it isundeniable that the general doctrine is to the effect that all statutory requirementsas to the execution of wills must be fully complied with. The same doctrine is alsodeducible from cases heretofore decided by this court

Still some details at times creep into legislative enactments which are so trivialthat it would be absurd to suppose that the Legislature could have attached anydecisive importance to them. The provision to the effect that the signatures of thetestator and witnesses shall be written on the left margin of each page rather


26/36

than on the right margin seems to be of this character. So far as concerns theauthentication of the will, and of every part thereof, it can make no possibledifferent whether the names appear on the left or on the right margin, providedthey are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decidedMarch 23, 1918, not reported), this court declared a will void which was totally

lacking in the signatures required to be written on its several pages; and in thecase of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared voidwhich contained the necessary signature on the margin of each left (folio), butnot on the margin of each page containing written matter.

We do not desire to intimate that the numbering in letters is a requisite of noimportance. But since its principal object is to give the correlation of the pages, we holdthat this object may be attained by writing "one." "two," "three," etc., well as by writing A,B, C, etc. Following, therefore, the view maintained by this court in the case ofAbanganvs. Abangan, supra, as regards the appreciation of the solemnities of a testament, wedecide that the judgment appealed from must be, as is hereby, affirmed with costs

against the appellant. So ordered.Araullo, C.J., Malcolm, Avancea, Ostrand and Romualdez, JJ., concur.


27/36


Manila

EN BANC

G.R. No. 16008 September 29, 1921

IN RE WILL OF THE DECEASED LUCINA ANDRADA, LUCILA ARCE,petitioner-appellant.

J. Dorado, J. Tirol, and J. Hontiveros for appellant.

STREET, J .:

Lucina Andrada died on June 5, 19919, in the Municipality of Capiz, Province of Capiz;

and soon thereafter a petition was presented to the Cour of First Instance of Capiz byLucila Arce to establish a document purporting to be the last will and testament of thedeceased. Upon hearing the petition, his Honor, Judge Antonio Villareal, declared thatthe document in question had not been executed in conformity with the requirements ofsection 618 of the Coe of Civil Procedure, as amended by Act No. 2645 of thePhilippine Legislature. He therefore refused to admit the purported will to probate, andthe petitioner appealed.

The attesting clause of the will in question is incorporated in the will itself, constitutingthe last paragraph thereof; and its defect consists in the fact that it does not state thenumber of sheets or pages upon which the will is written, though it does state that the

testatrix and the instrumental witnesses signed on every page, as is in fact obvious froman inspection of the instrument. Each of the pages moreover bears successively theVisayan words, "isa," "duha," "tatlo," "apat," "lima," which mean respectively "one,""two," "three," "four," "five," Visayan being the dialect in which the instrument is written.

By section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it isrequired that each and every page of the will shall be numbered correlatively in lettersand that the attesting clause shall state the number of sheets or pages used.

Without decising in this case whether the will in question is rendered invalid by reasonof the manner in which the pages are numbered, the court is unanimous upon the point

that the defect pointed out in the attesting clause is fatal. The law plainly says that theattestation shall state the number of sheets or pages used, the eident purpose being tosafeguard the document from the possiblity of the interpolation of additional pages orthe omission of some of the pages actually used. It is true that this point is alsosafeguarded by the other two requirements that the pages shall be consecutivelylettered and that each page shall be singed on the left margin by the testator and thewitnesses. In light of these requirements it is really difficult to see any practicalnecessity for the additional requirement that the attesting clause shall state the number


28/36

of sheets or pages used. Nevertheless, it cannot be denied that the last mentionedrequirement affords additional secuirty against the danger that the will may be tamperedwith; and as the Legislature has seen fit to prescribe this requirement, it must beconsidered material.

In two cases we have held that the failure to comply with the strict requirements of thislaw does not invalidate the instrument, but the irregularities presented in those caseswere entirely rivial, the defect in one case being that a willin which the dispositive partconsisted of a single sheet was not signed in the margin in addition to being signed atthe bottom (In re will of Abangan, 40 Phil., 476); in the others, that the pages comprisingthe body of the will were signed by the testator and witnesses on the right margininstead of the left (Avera vs.Garcia and Rodriguez, p. 145, ante). In the case nowbefore us the defect is, in our opinion, of more significance; and the rule here applicableis that enunciated in Caraig vs. Tatlonghari, R.G. No. 12558, decided March 23, 1918,not reported, and (In re estate of Saguinsim, 41 Phil., 875), in each of which the will washeld to be invalid.

It results that the trial judge did not err in refusing probate of the will, and the judgmentmust be affirmed. It is so ordered, with costs against the appellant.

Johnson, Araullo, Avancea and Villamor, JJ.,concur.


29/36


Manila

EN BANC

G.R. No. 17857 June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.PEDRO UNSON,petitioner-appellee,vs.ANTONIO ABELLA, ET AL.,opponents-appellants.

Crispin Oben for appellants.Pedro Guevarra and Carlos Ledesma for appellee.

VILLAMOR, J .:

On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who wasresiding in the municipality of Pagsanjan, Province of Laguna, executed her last will andtestament with an attached inventory of her properties, Exhibits A and A-1, in thepresence of three witnesses, who signed with her all the pages of said documents. Thetestatrix died on the 6th of January, 1921, and, as the record shows, the executorappointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the19th of January of the same year an application for the probate of the will and theissuance of the proper letters of administration in his favor.

To said application an opposition was presently by Antonio Abella, Ignacia Abella,Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceasedZalamea was not executed in conformity with the provinces of the law, inasmuch as itwas not paged correlatively in letters, nor was there any attestation clause in it, nor wasit signed by the testatrix and the witnesses in the presence of each other.

Trial having been held, the judge a quo overruled the opposition of the contestants, andordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding thatboth documents contained the true and last will of the deceased Josefa Zalamea.

From the judgment of the court below, the contestants have appealed, and in their brief

they assign three errors, which, in their opinion, justify the reversal of the judgmentappealed from.

The first error assigned by the appellants as committed by the court below is its findingto the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, wasexecuted with all the solemnities required by the law.


30/36

The arguments advanced by appellants' counsel in support of the first assignment oferror tend to impeach the credibility of the witnesses for the proponent, specially that ofEugenio Zalamea. We have made a careful examination of the evidence, but have notfound anything that would justify us in disturbing the finding of the courta quo. Theattesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together

with the other witness to the will, Pedro de Jesus, they did sign each and every page ofthe will and of the inventory in the presence of each other and of the testatrix, as thelatter did likewise sign all the pages of the will and of the inventory in their presence.

In their brief the appellants intimate that one of the pages of the will was not signed bythe testatrix, nor by the witnesses on the day of the execution of the will, that is, on the19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who saysthat on one occasion Gonzalo Abaya told him that one of the pages of the will had notbeen signed by the witnesses, nor by the testatrix on the day of its execution. Palileo'stestimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in therebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of

the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeachthe credibility of Eugenio Zalamea, for having made a sworn declaration before thejustice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect thathe was really one of the witnesses to the will in question, which fact was corroboratedby himself at the trial. The appellants take Zalamea's testimony in connection with thedismissal of a criminal case against a nephew of his, in whose success he wasinterested, and infer from this fact the partiality of his testimony. We deem this allegationof little importance to impeach the credibility of the witness Zalamea, especially becausehis testimony is corroborated by the other attesting witness. Gonzalo Abaya, and byattorney Luis Abaya, who had prepared the testament at the instance of the testatrix.The foregoing is sufficient for us to conclude that the first assignment of error made bythe appellants is groundless.

The appellants contend that the court below erred in admitting the will to probatenotwithstanding the omission of the proponent to produce one of the attestingwitnesses.

At the trial of this case the attorneys for the proponent stated to the court that they hadnecessarily to omit the testimony of Pedro de Jesus, one of the persons who appear tohave witnessed the execution of the will, for there were reasonable grounds to believethat said witness was openly hostile to the proponent, inasmuch as since theannouncement of the trial of the petition for the probate of the will, said witness hasbeen in frequent communication with the contestants and their attorney, and hasrefused to hold any conference with the attorneys for the proponent. In reply to this, theattorney for the contestants, said to the court, "without discussing for the presentwhether or not in view of those facts (the facts mentioned by the attorneys for thepetitioner), in the hypothesis that the same are proven, they are relieved from producingthat witness, for while it is a matter not decided, it is a recognized rule that the fact thata witness is hostile does not justify a party to omit his testimony; without discussing this,I say, I move that said statement be stricken out, and if the proponent wants these facts


31/36

to stand to stand in the record, let him prove them." The court a quo ruled, saying,"there is no need."

To this ruling of the court, the attorney for the appellants did not take any exception.

In the case ofAvera vs. Garcia and Rodriguez(42 Phil., 145), recently decided by thiscourt, in deciding the question whether a will can be admitted to probate, whereopposition is made, upon the proof of a single attesting witness, without producing oraccounting for the absence of the other two, it was said; "while it is undoubtedly truethat an uncontested will may be proved by the testimony of only one of the threeattesting witnesses, nevertheless in Cabang vs. Delfinado(34 Phil., 291), this courtdeclared after an elaborate examination of the American and English authorities thatwhen a contest is instituted, all of the attesting witnesses must be examined, if alive andwithin reach of the process of the court.

In the present case no explanation was made at the trial as to why all three of the

attesting witnesses were not produced, but the probable reason is found in thefact that, although the petition for the probate of this will had been pending fromDecember 21, 1917, until the date set for the hearing, which was April 5, 1919,no formal contest was entered until the very day set for the hearing; and it isprobable that the attorney for the proponent, believing in good faith thatprobate would not be contested, repaired to the court with only one of the threeattesting witnesses at hand, and upon finding that the will was contested,incautiously permitted the case to go to proof without asking for a postponementof the trial in order that he might produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not

produced, it does not in itself supply any basis for changing the rule expoundedin the case above referred to; and were it not for a fact now to be mentioned, thiscourt would probably be compelled to reverse this case on the ground that theexecution of the will had not been proved by a sufficient number of attestingwitnesses.

It appears, however, that this point was not raised by the appellant in the lowercourt either upon the submission of the cause for determination in that court orupon the occasion of the filing of the motion for a new trial. Accordingly it isinsisted for the appellee that this question cannot now be raised for t he first timein this court. We believe this point is well taken, and the first assignment of errormust be declared not to be well taken. This exact question has been decided bythe Supreme Court of California adversely to the contention of the appellant, andwe see no reason why the same rule of practice should not be observed by us.(Estate of McCarty, 58 Cal., 335, 337.)

There are at least two reasons why the appellate tribunals are disinclined topermit certain questions to be raised for the first time in the second instance. Inthe first place it eliminates the judicial criterion of the Court of First Instance upon


32/36

the point there presented and makes the appellate court in effect a court of firstinstance with reference to that point, unless the case is remanded for a new trial.In the second place, it permits, if it does not encourage, attorneys to trifle with theadministration of justice by concealing from the trial court and from theiropponent the actual point upon which reliance is placed, while they are engaged

in other discussions more simulated than real. These considerations are, wethink, decisive.

In ruling upon the point above presented we do not wish to be understood aslaying down any hard and fast rule that would prove an embarrassment to thiscourt in the administration of justice in the future. In one way or another we areconstantly here considering aspects of cases and applying doctrines which haveescaped the attention of all persons concerned in the litigation below; and this isnecessary if this court is to contribute the part due from it in the correct decisionof the cases brought before it. What we mean to declare is that when we believethat substantial justice has been done in the Court of First Instance, and the point

relied on for reversal in this court appears to be one which ought properly to havebeen presented in that court, we will in the exercise of a sound discretion ignoresuch question upon appeal; and this is the more proper when the questionrelates to a defect which might have been cured in the Court of First Instance ifattention had been called to it there. In the present case, if the appellant hadraised this question in the lower court, either at the hearing or upon a motion fora new trial, that court would have had the power, and it would have been its duty,considering the tardy institution of the contest, to have granted a new trial inorder that all the witnesses to the will might be brought into court. But instead ofthus calling the error to the attention of the court and his adversary, the point isfirst raised by the appellant in this court. We hold that this is too late.

Properly understood, the case of Cabang vs. Delfinado, supra, contains nothinginconsistent with the ruling we now make, for it appears from the opinion in thatcase that the proponent of the will had obtained an order for a republication andnew trial for the avowed purpose of presenting the two additional attestingwitnesses who had not been previously examined, but neverthelesssubsequently failed without any apparent reason to take their testimony. Bothparties in that case were therefore fully apprised that the question of the numberof witnesses necessar to prove the will was in issue in the lower court.

In the case at bar, we do not think this question properly to have been raised at the trial,but in the memorandum submitted by the attorney for the appellants to the trial court, hecontended that the will could not be admitted to probate because one of the witnessesto the will was not produced, and that the voluntary non-production of this witness raisesa presumption against the pretension of the proponent. The trial court found that theevidence introduced by the proponent, consisting of the testimony of the two attestingwitnesses and the other witness who was present at the execution, and had charge ofthe preparation of the will and the inventory, Exhibits A and A-1, was sufficient. Asannounced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is


33/36

made to the probate of a will, the attesting witnesses must be produced. But there areexceptions to this rule, for instance, when a witness is dead, or cannot be served withprocess of the court, or his reputation for truth has been questioned or he appearshostile to the cause of the proponent. In such cases, the will may be admitted to probatewithout the testimony of said witness, if, upon the other proofs adduced in the case, the

court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting witness, Pedro de Jesus, as accounted for by the attorney forthe proponent at the trial, does not render void the decree of the court a quo, allowingthe probate.

But supposing that said witness, when cited, had testified adversely to the application,this would not by itself have change the result reached by the court a quo, for section632 of the Code of Civil Procedure provides that a will can be admitted to probate,notwithstanding that one or more witnesses do not remember having attested it,provided the court is satisfied upon the evidence adduced that the will has beenexecuted and signed in the manner prescribed by the law.

The last error assigned by the appellants is made to consist in the probate of theinventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it,and its paging is made in Arabic numerals and not in letters.

In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and atthe bottom of said will, the testatrix Josefa Zalamea says:

In witness whereof, I sign this will composed of ten folios including the pagecontaining the signatures and the attestation of the witnesses; I have likewisesigned the inventory attached to this will composed of ten folios in the presence

of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in thismunicipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.

And the attestation clause is as follows:

The foregoing will composed of ten folios including this one whereunto we haveaffixed our signatures, as well as the inventory of the properties of Doa JosefaZalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latteraffixed her name to the last, and each and every page of this will and inventorycomposed of ten folios in our presence; and she declared this to be her last willand testament and at her request we have affixed hereunto our respectivesignatures in her presence and in the presence of each other as witnesses to thewill and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.

(Sgd.) GONZALO ABAYA,EUGENIO ZALAMEA,

PEDRO DE JESUS.


34/36

In view of the fact that the inventory is referred to in the will as an integral part of it, wefind that the foregoing attestation clause is in compliance with section 1 of Act No. 2645,which requires this solemnity for the validity of a will, and makes unnecessary any otherattestation clause at the end of the inventory.

As to the paging of the will in Arabic numerals, instead of in letters, we adhere to thedoctrine announced in the case ofAldaba vs. Roque (p. 378, ante

6. numbered correlatively in letters (succession full text) art 805

Documents