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6.

ALL PAGES SHALL BE NUMBERED CORRELATIVELY IN


LETTERS ON THE UPPER PART OF EACH PAGE

Republic of the Philippines
SUPREME 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 First
Instance of Leyte for the probate of the will, Exhibit A, executed, according to her, by the
Chinaman Tan Diuco, a resident of the municipality of Malitbog of said province, who
died 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 lower
court erred in holding that said will was not signed by three instrumental witnesses and
in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the order appealed
from, in which it is found that said will was executed with all the solemnities prescribed
by Act No. 2645, except that it was not signed by three instrumental witnesses beside
the signature of the testator and before the attestation clause, and this fact is the ground
upon which the petition was denied.
The document in question, Exhibit A, appears to have been signed by Simplicio Sala by
order of the testator, whose name is before the said signature, by reason of the latter's
incapacity on account of his weakness and the trembling of his hand, the testator also
stating that he directed said Simplicio Sala to sign it in his name and in the presence of
three 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 the
name of the testator Tan Diuco and by the witnesses therein mentioned, named Pablo
Maturan, Ladislao Fenomeno, and Enrique Pearedondo. After the signature of the
testator, Tan Diuco by Simplicio Sala, the following paragraph appears:
We, the undersigned witnesses to the forgoing will, do hereby state that the
testator signed this will and each of its sheets in the presence of all and each of
us, and we and each of us likewise did sign this will and all of its sheets in the
presence of the testator and each of us, witnesses.
"TAN DIUCO
By "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 be
attested and signed by three or more credible witnesses in the presence of the testator
and 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 the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, on the left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet. The attestation shall state the
number of sheets or pages used, upon which the will is written, and that 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.
Instrumental witness, as defined by Escriche in his Diccionario Razonado de
Legislacion y Jurisprudencia, volume 4, page 1115, is one who takes part in the
execution of an instrument or writing.
At present and under the laws now in force, particularly Act No. 2645 amendatory to
said section 618 of the Code of Civil Procedure, when a will is to be executed, the
testator draws or writes it personally or through another person and signs it also
personally, or if he is physically incapacitated, as in the instant case, through another
person who may or may not be the one who prepared or wrote the will, that is, the
document constituting the testator's last will and testament. The will having thus been
prepared and before it is signed by the testator or the person acting in his stead, or the
one directed by him to sign it in his name, in which case the name of the testator is
written before that of the signer, as above stated, in order that said document may have
the character of a valid will, the testator gathers three or more credible witnesses and
tells them that the contents of said document is his will, without informing them of its
contents, and then the testator, or the person directed by him to do so, signs it in the
presence of the testator and of each other, and the testator or the person acting in his
stead, 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. These
witnesses 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 document
known as will, their participation being limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil Procedure, as amended
by Act No. 2645, does not say that said witnesses must be different from those who
signed the attestation clause, for in the first part of said section, after speaking of the
signature of the testator or the person signing in his place, it adds, "and attested and
subscribed 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 left
margin of each page of the document presented by the testator to them as his will, must
be the ones who should sign the attestation clause, inasmuch as they alone can certify
the facts to be stated in said clause, for having taken a direct part therein, as they saw
the 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 was
signed under his express direction in the presence of said witnesses and that all the
sheets thereof had also been signed by them in the presence of said testator and of
each 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 Simplicio
Sala who signed by order of the latter, and if account is taken of the fact that these
witnesses are "instrumental" witnesses, as above demonstrated, and they have made
reference to their own signatures, as well as that of the testator and of the person who
signed by the latter's order below the attestation clause, it is evident that in the instant
case, it is merely a matter of technicality devoid of any importance as to the probate of
the will that said witnesses are called instrumental witnesses, as if they were different
from those who have to sign the attestation clause, for all of them are but the same
witnesses; 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 door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when a interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands
more 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 facts
herein mentioned and what has been above demonstrated.
For all of the foregoing, the order appealed from is reversed, and the document, Exhibit
A, presented by the proponent as the last will and testament of the deceased Tan Diuco
is admitted to probate, without special finding as to costs of both instances. So ordered.
Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.


Republic of the Philippines
SUPREME COURT
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 for
appellants.
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, which
was propounded by Ramon J. Fernandez for probate, and contested by Fernando
Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court of First Instance of
Manila having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court in
holding 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 the
testator.
(g) This clause was written after the execution of the dispositive part of the will
and was attached to the will after the death of the testator.
(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 the
testator, the latter's mind was perfectly sane and he understood it: that he signed all the
pages 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 by
Attorney Lopez Lizo to act as such in his presence. The law does not require that the
testator precisely be the person to request the witnesses to attest his will. It was also
sufficiently established in the record, beside being stated in the attestation clause, that
the testator signed the will in the presence of the three witnesses and that the latter, in
turn, signed it in the presence of the testator and of each other, the testator knowing
that the witnesses were signing his will; that the witnesses signed the attestation clause
before the death of the testator; that this clause, with the names of the witnesses in
blank, was prepared before the testator signed the will, and that the sheet containing
said clause, just as those of the will proper, was a loose sheet, and that all the four
sheets 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 page
3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those mentioned by
the opponents, and it having been proven that the testator executed said will in a
language known by him and consciously, freely and spontaneously, it would seen
unnecessary to go further, and the matter might be brought to a close right here, by
holding the will in question valid and allowable to probate, were it not for the fact that the
trial court and the opponents questioned the sufficiency and validity of the attestation
clause because the sheet on which it is written is not numbered, and it is not stated
there 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 of
each other, and specially because said attestation clause is not signed by the testator
either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that it does
not appeal on the upper part of the sheet, but it does not appear in its text, the pertinent
part of which is copied hereinafter, with the words, having reference to the number of
sheets of the will, underscored, including the page number of the attestation:
* * * We certify that the foregoing document written in Spanish, a language
known by the testator Antonino Vergel de Dios, consisting of three sheet actually
used, correlatively enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing document consists of three sheets, besides
that of the clause itself, which is in singular, it is clear that such a sheet of the attestation
clause is the fourth and that the will, including said sheet, has four sheets. This
description contained in the clause in question constitutes substantial compliance with
the requirements prescribed by the law regarding the paging. So it was held by this
Court in the case of Abangan vs. Abangan (40 Phil., 476), where the sheet containing
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 the
attestation clause, wholly or in part, be numbered or paged. Consequently this lack of
paging 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 testator
signed on the margin of each sheet of the will, in the presence of the witnesses and the
latter 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 our
presence and we at his request did the same in his presence and in that of each
other as witnesses to the will, and lastly, the testator, as well as we, as
witnesses, 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 it
in fact means nothing, but that the testator and the witnesses signed on the left margin
of each sheet of the will "in the same manner" in which they signed at the bottom
thereof, that is, the testator in the presence of the witnesses and the latter in the
presence of the testator and of each other. This phrase in the same manner cannot, in
view of the context of the pertinent part, refer to another thing, and was used here as a
suppletory phrase to include everything and avoid the repetition of a long and difficult
one, 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 signed
in the presence of the witnesses and the latter in the presence of each other, resorts to
a similar expression in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet
containing the attestation clause, this point was already decided in the above cited case
of Abangan 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 of Abangan vs. Abangan it was held that the signature of the testator is not
necessary in the attestation clause, but the theory is not announced that such a clause
is 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 laid
down that the attestation clause is necessary to the validity of the will. One of the points
on which greatest stress was laid in that case Uy Coque is that the requirements of the
law regarding the number of the pages used, the signing of the will and of each of its
pages by the testator in the presence of three witnesses, and the attestation and signing
of the will and of each of its pages by the witnesses in the presence of each other
cannot be proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of Uy
Coque that the signature of the testator was necessary in the attestation clause, nor
was 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 of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary
provision terminated, that is to say, the will properly speaking. Even then if it is intended
to commit misrepresentation or fraud, which are the things that with the requirements of
the law for the making and attesting of wills it is intended to avoid, it is just the same that
the clause; as in the case ofAbangan vs. Abangan, begins at the bottom of the will
properly 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, is
not signed any place by the testator in the case of Abangan vs. Abangan, as it is not in
the present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met
by a will executed after said Code took effect, to wit, that the language or dialect in
which it is written be known by the testator, that it be signed by the latter or by another
person in the name of the testator by his express direction and in his presence, and that
it be attested and signed by three or more credible witnesses in the presence of the
testator and of each other.
These general rules are amplified in the next two paragraphs as to the special
requirements 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 the
attestation 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 the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, on the left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly
speaking, without any reference whatsoever to the attestation clause not treated in this
second paragraph. It is in this second paragraph which deals only with the will (without
including the attestation clause), that the signature or name of the testator and those of
the witnesses are mentioned as necessary on the left margin of each and everyone of
the 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).
Now, are the signatures of the testator and the paging of the will also necessary in the
attestation clause? Let us see the last paragraph of this section 618 of the Code which
already deals with the requirements for the attestation clause. This last paragraph reads
thus:
The attestation 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.
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 the
attestation be signed by the testator or that the page or sheet containing it be
numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement, without
which it cannot be probate and with which only not aliunde (Uy Coque vs. Navas
L. Sioca , supra) may the requirements to be stated in its text be proven. The
attestation clause must be prepared and signed, as in the instant case, on the
same occasion on which the will is prepared and signed, in such a way that the
possibility of fraud, deceit or suppression of the will or the attestation clause be
reduced to a minimum; which possibility always exists, as experience shows, in
spite of the many precautions taken by the legislator to insure the true and free
expression of one's last will.
Second. That the will is distinct and different from the attestation, although both
are necessary to the validity of the will, similar, in our opinion, to
a 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, each
of which must comply with different requisites, among which is the signature of
the maker which is necessary in the document but not in the acknowledgment
and both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in the second
paragraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance with the
requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements
prescribed for the will were complied with, and this is enough for it, as such attestation
clause, to be held as meeting the requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not appear does not affect
its validity, for, as above stated, the law does not require that it be signed by the
testator.
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 reason
out this conclusion, it being sufficient for the adjudication of this case to hold the first
error assigned by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold, that the documents
Exhibit A, as the last will and testament of the deceased Antonio Vergel de Dios, meets
all the requirements prescribed by the low now in force and therefore it must be allowed
to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court proceed
with 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 my
opinion, the decision of the Court affords a striking illustration of the old adage that "a
hard case makes bad law."








G.R. No. 46995 June 21, 1940
In re testate estate of the deceased Hilarion Martir.
HERMOGENES N. MARTIR applicant-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 Negros
in special proceeding No. 7205, rendered on July 9, 1938, allowing the probate of the
last will and testament (Exhibit AA) of Hilarion Martir and confirming the. appointment of
Hermogenes Martir as the executor..chanroblesvirtualawlibrary chanrobles virtual law
library
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 Negros
for the probate of the will of his deceased father, Hilarion Martir, the document being
then identified as Exhibit AA. The said document appears to have been prepared by
attorney and notary public, Esteban H. Korral, in the Visayan dialect, with one original
and two carbon copies. On August 14, 1935, the will was signed by said testator and
the three attesting witnesses: Valeriano Gatuslao, Dionisio Gonzaga, and Olimpio de la
Rama. It was decided that one of the witnesses read the will to the testator, and for this
purpose Dionisio Gonzaga was selected. This was done. After the reading to the
document 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 AA
and in the carbon copy Exhibit AA-1. The testator than proceeded to sign the original on
the left margin of the four pages and at the foot of its body over his typewritten name
and surname on page 3 thereof in the presence of the above-named attesting
witnesses. Then the witnesses, one after another and in the presence of the testator
and 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, and
Valeriano Gatuslao and Dionisio Gonzaga likewise affixed their signatures at the foot of
the same clause, but, for lack of conveniently sufficient space on page 3, on the upper
part of page 4. Below the signatures of the witnesses Gatuslao and Gonzaga on the
upper part of page 4 there appears a "Nota" over the signature of the testator containing
certain instruction to his children. Under this note appears the declaration signed by the
oppositor Salvacion Angela expressing conformity to the conditions set forth
above.chanroblesvirtualawlibrary chanrobles virtual law library
On January 26, 1937, an opposition was entered to the probate of this will by Salvacion
Angela, 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
in accordance with law; that the signatures of the testator were obtained through deceit
and fraud and that undue influence was used by the proponent Hermogenes Martir over
the testator. After hearing, the trial court allowed the will to probate and, as stated,
confirmed the appointment of Hermogenes Martir as
executor.chanroblesvirtualawlibrary chanrobles virtual law library
On appeal the oppositor-appellant makes an assignment of seven errors which may be
condensed into the following: ( a) that the will was void because the first sheet is not
numbered as required by law; ( b) that Arabic numerals, instead of letters, were used in
the pagination of the other sheets of the will, ( c) that fraud and undue influence were
used on the testator, and ( d) that the attestation clause was insufficient in
law.chanroblesvirtualawlibrary chanrobles virtual law library
The first sheet of the will bears no number and the oppositor claims that this
circumstance 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 will
either before or after the execution of the controverted will. The principal object of the
requirement with reference to the numeration of the pages of the will is to forestall any
attempt to suppress or substitute any of the pages thereof. In the absence of collusion
or fraud and there being no question regarding the authenticity of the first page and the
genuineness of the signatures appearing thereon, we hold that the mere fact that the
first, 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 correlation
of 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 law
library
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 evidence
on this point. It should also be observed that the testator lived for over a year after the
execution of the will and the fact that he did not change or revoke the will is very
significant. Letters Exhibits "EE" and "LL" written by the oppositor and her husband to
the deceased furnish an explanation for the apparent discriminatory attitude of the
testator.chanroblesvirtualawlibrary chanrobles virtual law library
The opposition to the attestation clause is based on two grounds: (1) the statement of
the 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 the
will in the presence of the witnesses. An examination, however, of Exhibit AA shows
that the will really consists of four pages, the first page bearing no number and the other
three pages correlatively numbered in Arabic numerals. The attestation clause as
follows:
This will is composed of four pages and had been made and published by Hilarion
Martir 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 the
same was signed in their presence, they could not possibly refer to another person than
the 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 probate
although it may suffer from minor imperfections of language or from other non-essential
details (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. So
ordered.
Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.













****NOTE ABOUT THIS CASE: (IN FULL SPANISH ORIGINAL 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 and
appellee,
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 the
Court 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 special
administrator 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 February
7, 1939, Appellant Calixto Pilapil, who promoted the day before, the record of the same
deceased 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 last
will of the late Eleuterio P. Pilapil, the cars obrante document as Exhibit A is a duplicate
of the coal Exhibit C.
The relevant facts to be taken into account to resolve issues are proposed, according to
detach from the appealed decision and the same documents that the Court declare to
be 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 in
the city of that name on December 6, 1935. Absence of any submitted his will after his
death, at least until early February 1939, his brother Calixto Pilapil promoted the 6th of
said month and year, the case of intestacy No. 399 to ask fuesenombrado relict
administrator of the goods. Received proof that he had submitted the request for
elindicado end prior publication of notices presritos by law, and the court hearing prior to
the quecomparecieron to oppose it, among which were the same and Simeona appellee
Pilapil, 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 late
Eleuterio P. Pilapil, the Exhibit A that Carbon is the duplicate to the Exhibit C. There
between the clauses of these two documents, which are inserted below for their
relevance to the issues raised and also the importance
I, Eleuterio Pilapil, Priest Natural Apostolic Roman Catholic Church, of sixty-eight
years old, Liloan currently Parish Priest of the Parish of Mualboal, Province of
Cebu, IF, enjoying health and FULL USE OF MY MENTAL POWERS, hereby
publish, 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 , That
in case of inability, negligence or other cause with which embarrasses enforce
this my Testament and Last Will, by a guarantor, my disposal and ordered to be
replaced in the office of executor, executor of this my Testament and Last Will,
my cousin, Jose Cabatingan, married, of legal age, resident of Mualboal
Municipiop, Province of Cebu, IF, who was in charge and will make this my
following provisions are met:
xxx xxx xxx
. 2nd my disposal and command this my Last Will and Testament was not
ventilate in court, since this Last Will and Testament, simply confirms, affirms and
assures 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, which
confirms, affirms and assures the legitimacy of documents given to my buyers
consists of two items; contains sixteen provisions and is written in three pages;
xxx xxx xxx
Cebu, Cebu, IF, for today November 27, 1935.
(Signed) ELEUTERIO Pilapil Testator ;

at the end thereof (exhibits A and C), there witnessing this clause:
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 the
presence of us all pray and said Testator, each signed of us in the presence of
us, 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 of
the two first range; listed firms that are at the end of the main body of these documents
and their attestation clause; and are, according to the evidence, signatures of the late
Eleuterio 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 word
that 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 of
the 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 aforementioned
Exhibits A and C, no more than two articles ("Art First" and "Second Section") and
dieceseis provisions.
The grounds on which the appellants rely to argue that legalization does not come from
any of the two specified documents as a testament of the late Eleuterio P. Pilapil, are
these:
( 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 those
documents exhibits A and C - age was responsible for testing;
( c ) It is not proved that the deceased owned the Spanish which is the language in
which those documents appear written;
( d ) that one of the clauses of these documents is no prohibition that aired on slab
Courts;
( e ) None of the two has been prepared, signed and witnessed in accordance with the
provisions 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 of
the appellants Appeals, the two cases Nos. 399 and 407 were promoted in two different
chambers of the Court of First Instance of Cebu. The first was promoted in Division
III; and the last, in Room II. Hearing Judge of said Salas had a direct relationship
between unto and another provided that the two of them from recognizing by a single
Judge; 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 legalize
and disposition of last will of the late Eleuterio P. Pilapil, has commissioned Express it to
be. Also, there was not no law that prohibits the courts hearing a probate record or
intestate, appoint an administrator over; and, if it happened that I leave without effect
the appointment of the appellant as administrator, then the two mentioned records were
melted. But still; if the purpose of the appellants to propose the matter of which we are
speaking, is to rescind the appointment issued to appellee as special administrator, is
vain 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 allow
appeal against orders of that nature. Is the provision of strict law that says, "Do not
allow 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 as
special administrator, for the reason that other property was already appointed by the
court, the error, if such it can be called, has not been so nature that has caused any
harm 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 been
done while the case was still in court of its origin. We can not take them into account in
the present stage of the proceedings because, assuming that already existed then, can
and should be said, but did not say in express terms the Court of Cebu, I believe that
not vitiate these documents; it is presumption rebuttable that "all the facts related to the
issues 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 same
circumstances, they did just to put things in their proper place. The two exhibits A and C
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, Cebu
Southern Islands Hospital, where he died. Being based on these facts the Court that
were tested in court, declare as follows: "The intervention of the three instrumental
witnesses 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, and
there the deceased begged them to act today to witness the document and then had
prepared. "
In preparing the, being in Mualboal was no more than natural that expressed in it that
there were prepared, and leave blank the date but still put the name of the month in
which they were put in clean, ie October 1935.
The age of the testator as to whether they spoke Spanish is the language in which the
two exhibits, or do not appear written, it must be said that a priest and parish priest of
Mualboal, 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 to
be a parish priest of one must be a priest, and to be, many years of study in seminars
where Spanish is spoken are required as official language as English. Moreover, no
evidence 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 the
Court" can not strip the courts of their authority to determine if your will is referred
legalizable or not. There are stakeholders in one way or another on an issue, which may
confer or remove the jurisdiction and authority to resolve Trubunales and decide what
you want the same law is resolved and decided. Please note that the law on penalty
kicks, 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 your
legalization and at the same time to dispose of his property according sends him
there; or whether the contract should be declared dead intestate, not being susceptible
of 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 ban
on 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 prepared
and signed in accordance with the law, saying that their pages are not numbered with
letters; and because in its clause witnessing not expressed that they were signed by the
three instrumental witnesses, in the presence of the testator, it is sufficient to call
attention to the fact that the bottom of the first page there are lyrics on the note clearly
states: " 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 the
first two lines of the third page is the last, where, to complete the arrangement that is
contained in the last paragraph of the previous page, or second, it is stated:
. . . consists of two items; CONTAINS
sixteen provisions and is written
on 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 the
three instrumental witnesses who signed it states that
the pre-insert Testament and Last Will,
has been subscribed and sworn declared by
the Testator, Rev. Eleuterio P. Pilapil
in the presence of us all;
and row followed by the same witnesses who also says:
to beg of the testator, signed
each 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 the
presence of the attesting witnesses, permits and justifies the inference that the testator
was present when the last alli affixed their respective signatures.
The purpose of the law to establish the formalities required authenticity is undoubtedly
ensure 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 of
same. It has fulfilled that purpose in the event that there has been talk that, in the same
body 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 partly
lyrics, 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 against Mojal and Aguilar (47 Phil., 160), which
was clarified by the cause of Gumban against Gorecho and others (50 Phil., 31), there
is in this case because there there was but notes: "Pag 1"; "Pag 2"; "Pag 3"; and "Pag
4" 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 the
third page of the exhibits A and C, that they are composed of three pages, and contain
two articles and sixteen provisions.
They are therefore the perfect application if it is what we said in the causes of
Rodriguez against Yap, GR No. 45924, May 18, 1939; Blessed and against De
Gorostiza (57 Phil., 456). We said in these cases, respectively, as follows:
The wording of the attestation clause in this will not technically free repairs, but is
substantially a law enforcement.
We maintain the view that should be required strict compliance with the
substantive requirements of the will, to ensure its authenticity, but at the same
time we believe that defects that do not affect the order should not be taken into
account and the other part , be taken into account, could thwart the will of the
testator.(Rodriguez against Yap, supra .)
It should not be allowed to hinder the legal formalities employing good common
sense in the consideration of wills and to frustrate the wishes of the deceased
solemnly expressed in their wills, as to which there is not even granting shadow
of bad faith or fraud. (Blessed against De Gorostiza, supra .)
For these reasons, finding according to law the appealed decision of the Court of First
Instance 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, has
been subscribed, and sworn to by the said Testator, Rev. Eleuterio P. Pilapil in
the presence of us all pray and said Testator, each signed of us in the presence
of 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 the
presence of the testator and, therefore, the will can not be probated. But the majority
argues that "the phrase 'a prayer of said testator,' attached to it signed and signed his
will 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 said
repeatedly that the formalities required of a will by law can not be established by
evidence aliunde . Therefore, inference tests are inadmissible, mostly if the inference is
not quite adjusted to the logic.
For these reasons, I dissent from the opinion of the majority.

Republic of the Philippines
SUPREME COURT
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 the
probate of what purports to be the last will and testament (Exhibit A) of Don Sixto
Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six
months after the document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wit: (1) that the deceased never
executed 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 as
mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental
witnesses 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 the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and
the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was
procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words:
"That the court a quo erred in holding that the document Exhibit "A" was executed in all
particulars 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 a
language known to the decedent after petitioner rested his case and over the vigorous
objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a
separate 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 to
afford 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
number on the first sheet, if that be necessary, is supplied by other forms of
identification more trustworthy than the conventional numerical words or characters.
The unnumbered page is clearly identified as the first page by the internal sense of its
contents considered in relation to the contents of the second page. By their meaning
and 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, which
starts at the bottom of the preceding page. Furthermore, the unnumbered page contains
the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the
testator was in full use of his testamentary faculty, all of which, in the logical order of
sequence, precede the direction for the disposition of the marker's property. Again, as
page two contains only the two lines above mentioned, the attestation clause, the mark
of the testator and the signatures of the witnesses, the other sheet can not by any
possibility 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 merits
we do not believe that the appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set out in the
appellant's brief are incidents not all of which every one of the witnesses can be
supposed 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 experimental
psychology show that the contradictions of witnesses generally occur in the
details of a certain incident, after a long series of questioning, and far from being
an evidence of falsehood constitute a demonstration of good faith. Inasmuch as
not 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 minor
details; 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. The
reason for this was that the testator was suffering from "partial paralysis." While another
in testator's place might have directed someone else to sign for him, as appellant
contends should have been done, there is nothing curious or suspicious in the fact that
the testator chose the use of mark as the means of authenticating his will. It was a
matter 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 the
trial court communicated an abuse of discretion in allowing the appellant to offer
evidence to prove knowledge of Spanish by the testator, the language in which the will
is drawn, after the petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It is within the
discretion of the court whether or not to admit further evidence after the party offering
the evidence has rested, and this discretion will not be reviewed except where it has
clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court
whether or not it will allow the case to be reopened for the further introduction of
evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the
case may be reopened after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the same, or after the
motion has been granted, if the order has not been written, or entered upon the minutes
or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their
respective direct proofs, they are allowed to offer rebutting evidence only, but, it has
been held, the court, for good reasons, in the furtherance of justice, may permit them to
offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43
Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to the evidence is to correct evidence
previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J.,
160-163.) The omission to present evidence on the testator's knowledge of Spanish had
not been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its
silence on the testator's understanding of the language used in the testament. There is
no statutory requirement that such knowledge be expressly stated in the will itself. It is a
matter that may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog
was ordered although it did 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 in
a Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of Don
Sixto Lopez is affirmed, with costs.
Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.






Republic of the Philippines
SUPREME COURT
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, the
widow 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 the
help of Vicente Platon and in the presence of three witnesses who signed the
attestation clause and each of the four pages of the testament. Maria Roque died on
December 3, 1919, and when her will was filed in court for probate, it was contested by
Ludovico Roque on the ground that it had not been prepared nor executed in conformity
with the requirements and solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by its
decision rendered on February 27th of the following year, pronounced the testament in
question valid, and ordered its probate, appointing Ceferino Aldaba as the administrator
of the estate.
The errors assigned by the appellant are two, to wit: "That each and every folio of the
said testament is not paged correlatively in letter," and "that the said will lacks the
attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find at the
end thereof the following in Tagalog which translated into English reads:
This document expresses my last and spontaneous will, and is my last will and
testament, which was drawn by the lawyer, Don Vicente Platon, at my direction,
and everything contained in this testament has been ordained and directed by
me 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 I
might hear all its contents, and I have heard and understood all the contents of
this document which is my last will, wherefore, and not knowing how to write, I
have requested Don Vicente Platon to write and sign my name in my stead
hereon; 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 I
have placed the thumb mark of my right hand in the presence of the subscribing
witnesses, 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 also
declare that at my request Don Vicente Platon has written my name on the left
margin of all pages of this testament, in the presence of the witnesses, and all
the witnesses have also signed all the pages of this testament on the left margin
in 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 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:
The attestation 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 the pages thereof in the presence of the testator and of each
other.
In regard to the other assignment of error, to wit, that each of the folios of the said
testament is not paged correlatively in letters "one." "two," "three," etc., but only with the
letters A, B, C, etc., we are of the opinion that this method of indicating the paging of the
testament is a compliance with the spirit of the law, since either one of the two ways
above-mentioned indicates the correlation of the pages and serves to prevent the loss
of any of them. It might be said that the object of the law in requiring that the paging be
made in letters is to make falsification more difficult, but it should be noted that since all
the 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 words
the more or less degree of facility to imitate the writing of the letters A, B, C, etc., does
not make for the easiness to forge the signature. And as in the present case there exists
the guaranty of the authenticity of the testament, consisting in the signatures on the left
marging 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 be
repeated:
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 guarantee their truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these primordial ends. But, on
the other hand, also one must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely 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 on
another. 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 testamentary
dispositions and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets be further signed on
their margings by the testator and the witnesses, or be paged.
This means that, according to the particular case, the omission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the
upper part of the sheet, but if the paging should be place din the lower part, would the
testament be void for his sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin, would this fact also annul the
testament? Evidently not. This court has already held in Avera vs. Garcia and
Rodriguez (42 Phil., 145):lvvph1n+
It is true that the statute says that the testator and the instrumental witnesses
shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements
as to the execution of wills must be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court
Still some details at times creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each page rather
than on the right margin seems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible
different whether the names appear on the left or on the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided
March 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 the
case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void
which contained the necessary signature on the margin of each left (folio), but
not on the margin of each page containing written matter.
We do not desire to intimate that the numbering in letters is a requisite of no
importance. But since its principal object is to give the correlation of the pages, we hold
that 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 ofAbangan
vs. Abangan, supra, as regards the appreciation of the solemnities of a testament, we
decide 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.














Republic of the Philippines
SUPREME COURT
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 by
Lucila Arce to establish a document purporting to be the last will and testament of the
deceased. Upon hearing the petition, his Honor, Judge Antonio Villareal, declared that
the document in question had not been executed in conformity with the requirements of
section 618 of the Coe of Civil Procedure, as amended by Act No. 2645 of the
Philippine Legislature. He therefore refused to admit the purported will to probate, and
the petitioner appealed.
The attesting clause of the will in question is incorporated in the will itself, constituting
the last paragraph thereof; and its defect consists in the fact that it does not state the
number 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 from
an inspection of the instrument. Each of the pages moreover bears successively the
Visayan 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 is
required that each and every page of the will shall be numbered correlatively in letters
and 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 reason
of 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 the
attestation shall state the number of sheets or pages used, the eident purpose being to
safeguard the document from the possiblity of the interpolation of additional pages or
the omission of some of the pages actually used. It is true that this point is also
safeguarded by the other two requirements that the pages shall be consecutively
lettered and that each page shall be singed on the left margin by the testator and the
witnesses. In light of these requirements it is really difficult to see any practical
necessity for the additional requirement that the attesting clause shall state the number
of sheets or pages used. Nevertheless, it cannot be denied that the last mentioned
requirement affords additional secuirty against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be
considered material.
In two cases we have held that the failure to comply with the strict requirements of this
law does not invalidate the instrument, but the irregularities presented in those cases
were entirely rivial, the defect in one case being that a willin which the dispositive part
consisted of a single sheet was not signed in the margin in addition to being signed at
the bottom (In re will of Abangan, 40 Phil., 476); in the others, that the pages comprising
the body of the will were signed by the testator and witnesses on the right margin
instead of the left (Avera vs. Garcia and Rodriguez, p. 145, ante). In the case now
before us the defect is, in our opinion, of more significance; and the rule here applicable
is 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 was
held to be invalid.
It results that the trial judge did not err in refusing probate of the will, and the judgment
must be affirmed. It is so ordered, with costs against the appellant.
Johnson, Araullo, Avancea and Villamor, JJ., concur.












Republic of the Philippines
SUPREME COURT
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 was
residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and
testament with an attached inventory of her properties, Exhibits A and A-1, in the
presence of three witnesses, who signed with her all the pages of said documents. The
testatrix died on the 6th of January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the
19th of January of the same year an application for the probate of the will and the
issuance 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 deceased
Zalamea was not executed in conformity with the provinces of the law, inasmuch as it
was not paged correlatively in letters, nor was there any attestation clause in it, nor was
it 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, and
ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that
both 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 judgment
appealed from.
The first error assigned by the appellants as committed by the court below is its finding
to the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was
executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of
error tend to impeach the credibility of the witnesses for the proponent, specially that of
Eugenio Zalamea. We have made a careful examination of the evidence, but have not
found anything that would justify us in disturbing the finding of the courta quo. The
attesting 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 of
the will and of the inventory in the presence of each other and of the testatrix, as the
latter 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 by
the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the
19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says
that on one occasion Gonzalo Abaya told him that one of the pages of the will had not
been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's
testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the
rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of
the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach
the credibility of Eugenio Zalamea, for having made a sworn declaration before the
justice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that
he was really one of the witnesses to the will in question, which fact was corroborated
by himself at the trial. The appellants take Zalamea's testimony in connection with the
dismissal of a criminal case against a nephew of his, in whose success he was
interested, and infer from this fact the partiality of his testimony. We deem this allegation
of little importance to impeach the credibility of the witness Zalamea, especially because
his testimony is corroborated by the other attesting witness. Gonzalo Abaya, and by
attorney 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 by
the appellants is groundless.
The appellants contend that the court below erred in admitting the will to probate
notwithstanding the omission of the proponent to produce one of the attesting
witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had
necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to
have witnessed the execution of the will, for there were reasonable grounds to believe
that said witness was openly hostile to the proponent, inasmuch as since the
announcement of the trial of the petition for the probate of the will, said witness has
been in frequent communication with the contestants and their attorney, and has
refused to hold any conference with the attorneys for the proponent. In reply to this, the
attorney for the contestants, said to the court, "without discussing for the present
whether or not in view of those facts (the facts mentioned by the attorneys for the
petitioner), in the hypothesis that the same are proven, they are relieved from producing
that witness, for while it is a matter not decided, it is a recognized rule that the fact that
a 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
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 of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently decided by this
court, in deciding the question whether a will can be admitted to probate, where
opposition is made, upon the proof of a single attesting witness, without producing or
accounting for the absence of the other two, it was said; "while it is undoubtedly true
that an uncontested will may be proved by the testimony of only one of the three
attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American and English authorities that
when a contest is instituted, all of the attesting witnesses must be examined, if alive and
within 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 the
fact that, although the petition for the probate of this will had been pending from
December 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 is
probable that the attorney for the proponent, believing in good faith that
probate would not be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking for a postponement
of 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 expounded
in the case above referred to; and were it not for a fact now to be mentioned, this
court would probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number of attesting
witnesses.
It appears, however, that this point was not raised by the appellant in the lower
court either upon the submission of the cause for determination in that court or
upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for t he first time
in this court. We believe this point is well taken, and the first assignment of error
must be declared not to be well taken. This exact question has been decided by
the Supreme Court of California adversely to the contention of the appellant, and
we 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 to
permit certain questions to be raised for the first time in the second instance. In
the first place it eliminates the judicial criterion of the Court of First Instance upon
the point there presented and makes the appellate court in effect a court of first
instance 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 the
administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are engaged
in other discussions more simulated than real. These considerations are, we
think, decisive.
In ruling upon the point above presented we do not wish to be understood as
laying down any hard and fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the correct decision
of the cases brought before it. What we mean to declare is that when we believe
that 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 have
been presented in that court, we will in the exercise of a sound discretion ignore
such question upon appeal; and this is the more proper when the question
relates to a defect which might have been cured in the Court of First Instance if
attention had been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or upon a motion for
a 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 in
order that all the witnesses to the will might be brought into court. But instead of
thus calling the error to the attention of the court and his adversary, the point is
first raised by the appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that
case that the proponent of the will had obtained an order for a republication and
new trial for the avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless
subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised that the question of the number
of 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, he
contended that the will could not be admitted to probate because one of the witnesses
to the will was not produced, and that the voluntary non-production of this witness raises
a presumption against the pretension of the proponent. The trial court found that the
evidence introduced by the proponent, consisting of the testimony of the two attesting
witnesses and the other witness who was present at the execution, and had charge of
the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As
announced in Cabang vs. Delfinado, supra, the general rule is that, where opposition is
made to the probate of a will, the attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he appears
hostile to the cause of the proponent. In such cases, the will may be admitted to probate
without 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 for
the proponent at the trial, does not render void the decree of the court a quo, allowing
the 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 section
632 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 been
executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the probate of the
inventory, 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 at
the bottom of said will, the testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have likewise
signed the inventory attached to this will composed of ten folios in the presence
of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this
municipality 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 have
affixed our signatures, as well as the inventory of the properties of Doa Josefa
Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter
affixed her name to the last, and each and every page of this will and inventory
composed of ten folios in our presence; and she declared this to be her last will
and testament and at her request we have affixed hereunto our respective
signatures in her presence and in the presence of each other as witnesses to the
will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an integral part of it, we
find 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 other
attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the
doctrine announced in the case of Aldaba vs. Roque (p. 378, ante), recently decided by
this court. In that case the validity of the will was assailed on the ground that its folios
were paged with the letters A, B, C, etc., instead of with the letters "one," two," "three,"
etc. It was held that this way of numbering the pages of a will is in compliance with the
spirit of the law, inasmuch as either one of these methods indicates the correlation of
the pages and serves to prevent the abstraction of any of them. In the course of the
decision, we said: "It might be said that the object of the law in requiring that the paging
be made in letters is to make falsification more difficult, but it should be noted that since
all the 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 words the more or less degree of facility to imitate the writing of the letters A, B, C,
etc., does not make for the easiness to forge the signatures. And as in the present case
there exists the guaranty of the authenticity of the testament, consisting in the
signatures on the left margins 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 be repeated:
"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 primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, 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 on
another. 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 testamentary dispositions
and is signed at the bottom by the testator and three witnesses, and the second
contains only the attestation clause and is signed also at the bottom by the three
witnesses it is not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged."
This means that, according to the particular case, the emission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on the
upper part of the sheet, but if the paging should be placed in the lower part, would the
testament be void for this sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin, would this fact also annul the
testament? Evidently not. This court has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the instrumental witnesses
shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements
as to the execution of wills must be fully complied with. The same execution for
wills must be fully complied with. The same doctrine is also deducible from cases
heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each page rather
than on the margin seems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or on the right margin, provided
they are on one or the other. In Craig vs. Tatlonghari (G. R. No. 12558, decided
March 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 the
case of Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void
which contained the necessary signatures on the margin of each leaf (folio), but
not in the margin of each page containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of no
importance. But since its principal object is to give the correlation of the pages, we hold
that his object may be attained by writing one, two, three, etc., as well as by writing A,
B, C, etc.
We see no reason why the same rule should not be applied where the paging is in
Arabic numerals, instead of in letters, as in the inventory in question. So that, adhering
to the view taken by this court in the case of Abangan vs. Abangan, and followed
in Aldava vs. Roque, with regard to the appreciation of the solemnities of a will, we find
that the judgement appealed from should be, as is hereby, affirmed with the costs
against the appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and Romualdez, JJ., concur.