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SECOND DIVISION

DY YIENG SEANGIO,

G.R. Nos. 140371-72

BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners,

Present:

PUNO, J., Chairperson,
-

versus -

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and

HON. AMOR A. REYES, in her

GARCIA, JJ.

capacity as Presiding Judge,
Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D.

Promulgated:

SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,

November 27, 2006

Respondents.
x ---------------------------------------------------------------------------------------- x

DECISION

AZCUNA, J.:

This is a petition for certiorari1[1] with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification of the
orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of
Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.
Proc. No. 99-93396, and entitled, In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of
the RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos
as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

1

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command of
her faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP. Proc.
No. 9890870 because testate proceedings take precedence and enjoy priority over
intestate proceedings.2[2]

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

Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman

2

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St. 3[3] (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio (signed) Unang Saksi ikalawang saksi (signed) ikatlong saksi 3 . Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Ermita. Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi.. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

4) the rule on preterition does not apply because Segundos will does not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.On May 29. According to private respondents. the authority of the probate court is limited only to a determination of the extrinsic validity of the will. upon petitioners motion. 9890870 and SP. SP. Petitioners filed their opposition to the motion to dismiss contending that: 1) generally. 1999. it is not barred from delving into the intrinsic validity of the same. hence. and. Alfredo. private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will. Proc. 9993396 were consolidated. the will only shows an alleged act of disinheritance by the decedent of his eldest son. 3) disinheritance constitutes a disposition of the estate of a decedent. and nothing else. private respondents moved for the dismissal of the probate proceedings5[5] primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. No. that all other compulsory heirs were not named nor instituted as heir. Proc.4[4] On July 1. devisee or legatee. 2) private respondents question the intrinsic and not the extrinsic validity of the will. 1999. 6[6] 4 5 6 . Such being the case. and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. No. there is preterition which would result to intestacy.

It would have meant a waste of time. she not being a compulsory heir in the direct line. the Motion to Suspend Proceedings is hereby DENIED for lack of merit. for to do otherwise would amount to an abuse of discretion.. However. SO ORDERED. 1999. WHEREFORE. plus added futility. expense. Petitioners contend that: 7 . clearly shows that there is preterition.On August 10. the will appears to be intrinsically void would have been an exercise in futility. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: for respondents to have tolerated the probate of the will and allowed the case to progress when. effort. [T]he other heirs being omitted. dismissing the petition for probate proceedings: A perusal of the document termed as will by oppositors/petitioners Dy Yieng Seangio. 9993396 is hereby DISMISSED without pronouncement as to costs. premises considered. 1999. As such. et al. the RTC issued its assailed order.7[7] Petitioners motion for reconsideration was denied by the RTC in its order dated October 14. this Court is bound to dismiss this petition. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied). as the only heirs mentioned thereat are Alfredo and Virginia. Article 854 does not apply. Article 854 of the New Civil Code thus applies. on its face. Special Proceedings No. insofar as the widow Dy Yieng Seangio is concerned.

DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL. THE DUE EXECUTION THEREOF. WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL. AND. I.. as follows: . DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B HEREOF) CONSIDERING THAT: I THE RESPONDENT JUDGE. III RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. Petitioners argue. WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS. THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW. DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION. II EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR.THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS.E. IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID.

respondent judge was mandated to proceed with the hearing of the testate case. with the sole exception of Alfredo. . the testator intended all his compulsory heirs. and. to inherit his estate. legatees and devisees of the testator Segundo. petitioners and private respondents alike. simply contains a disinheritance of a compulsory heir. as its title clearly states. Third. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir. but rather. Lastly. and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation. the holographic will does not contain any institution of an heir. inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid. Fourth. the continuation of the proceedings in the intestate case will work injustice to petitioners. Second. and will render nugatory the disinheritance of Alfredo. Kasulatan ng Pag-Aalis ng Mana. and. respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof. b) cause the mailing of said notice to the heirs. there is no preterition in the decedents will and the holographic will on its face is not intrinsically void.First. Thus.

When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more. . With regard to the reasons for the disinheritance that were stated by Segundo in his document. Alfredo was disinherited by Segundo. or undue influence causes the testator to make a will or to change one already made. the Court believes that the incidents. Alfredo. Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. legitimate as well as illegitimate: (1) (2) (3) (4) (5) When a child or descendant has been found guilty of an attempt against the life of the testator. taken as a whole. entitled Kasulatan ng Pag-Aalis ng Mana. private respondents did not raise any issue as regards the authenticity of the document. In effect. unmistakably showed Segundos intention of excluding his eldest son. Alfredo. The following shall be sufficient causes for the disinheritance of children and descendants. and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code: Article 919. intimidation. violence. The document. A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator. Except on the ground of preterition. For disinheritance to be valid. if the accusation has been found groundless. When a child or descendant by fraud. descendants.The purported holographic will of Segundo that was presented by petitioners was dated. can be considered a form of maltreatment of Segundo by his son. his or her spouse. signed and written by him in his own handwriting. as an heir to his estate for the reasons that he cited therein. or ascendants.

is an act of disposition in itself. and need not be witnessed. dated and signed by the hand of Segundo himself.8[8] When a child or descendant leads a dishonorable or disgraceful life. In other words. It is written. conforms to the formalities of a holographic will prescribed by law. and signed by the hand of the testator himself. Now.(6) (7) (8) Maltreatment of the testator by word or deed. Segundos document. dated. It is subject to no other form. Conviction of a crime which carries with it the penalty of civil interdiction. the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. and while it does not make an affirmative disposition of the latters property. the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will. must be entirely written. although it may initially come across as a mere disinheritance instrument. A holographic will. as provided under Article 810 of the Civil Code. and may be made in or out of the Philippines. by the child or descendant. An intent to dispose mortis causa9[9] can be clearly deduced from the terms of the instrument. nonetheless. the disinheritance of Alfredo. 10[10] 8 9 10 .

13[13] the disinheritance cannot be given effect. as illustrated in the present case. the Court is convinced that the document. even if captioned as Kasulatan ng Pag-Aalis ng Mana. or public policy that it cannot be given effect. taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. It is only when the intention of the testator is contrary to law.Moreover. All rules of construction are designed to ascertain and give effect to that intention. it is a fundamental principle that the intent or the will of the testator. should be construed more liberally than the ones drawn by an expert. being usually prepared by one who is not learned in the law.12[12] In this regard. expressed in the form and within the limits prescribed by law. morals. Unless the will is probated. 14[14] 11 12 13 14 . must be recognized as the supreme law in succession. therefore. was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. 11[11] Holographic wills.

and that the law favors testacy over intestacy. therefore. in the document did not operate to institute her as the universal heir. the trial court. Segundos last expression to bequeath his estate to all his compulsory heirs. The mere mention of the name of one of the petitioners. unless the will is probated. Thus. should have allowed the holographic will to be probated.18[18] 15 16 17 18 . It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose. Also.17[17] In view of the foregoing. It was. in the Courts opinion. Her name was included plainly as a witness to the altercation between Segundo and his son. Segundo did not institute an heir 16[16] to the exclusion of his other compulsory heirs. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.With regard to the issue on preterition. Alfredo. 15[15] the Court believes that the compulsory heirs in the direct line were not preterited in the will. the probate of the will cannot be dispensed with. Considering that the questioned document is Segundos holographic will. the right of a person to dispose of his property may be rendered nugatory. Virginia. with the sole exception of Alfredo.

are set aside. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings. The Orders of the Regional Trial Court of Manila. No.WHEREFORE. 1999 and October 14. Respondent judge is directed to reinstate and hear SP Proc. SO ORDERED. Proc. No. 1999. . 99-93396 for the allowance of the holographic will of Segundo Seangio. the petition is GRANTED. Branch 21. No costs. The intestate case or SP. dated August 10.

: The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. administratrix-appellee. raising only question of law. Reyes.R. residente de Porac. sin violencia. idioma que poseo y entiendo. — El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos Gil no ha sido otogar de acuerdo con la ley. Segundo Error. Eligio C. deceased. ISABEL HERREROS VDA. DE MURCIANO. 2. F. The oppositor Pilar Gil Vda. vs. de la manera siguiente: 1. de 66 años de edad. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga. PILAR GIL VDA. AMEN Yo. DE GIL. 1951 TESTATE estate of Carlos Gil. No. . hallandome sano y en pleno goce de mis facultades intelectuales. de Murciano appealed to this Court. otorgo y ordeno este mi testamento y ultima voluntad en castellano. oppositor-appellant. Pampanga. Her counsel assigns the two following alleged errors: Primer Error. JUGO. The alleged will read as follows: Primera Pagina (1) EN EL NOMBRE DE DIOS.Republic of the Philippines SUPREME COURT Manila EN BANC G. dolo o influencia ilegal de persona extraña. Carlos Gil. Albert and Agcaoili for appellee. coaccion. I. — Erro finalmente a legalizar el referido testamento. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos hijos. J. L-3362 March 1.. libre y expontaneamente. Lagman for appellant.

Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e inmuebles situados en Manila y en Pampanga. CARLOS GIL Testificacion: Segunda Pagina (2) Nosotros los que suscribimos. RIVERA (Fdo. todos mayores de edad. utiles con la clausula de atestiguamiento en presencia de los testigos. con relevacion de fianza. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.3. Pampanga.. the court below said: . que dichos bienes remanentes se adjudicaran a Don Carlos Worrel. compuesto de dos paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en la parte superior de la casilla.) RAMON MENDIOLA (Fdo.) MARIANO OMAÑA Regarding the correctness and accuracy of the above-copied alleged will. bajo la condicion de que cuando esta muera y si hayan bienes remanentes heredadas por ella de mi.) ALFREDO T. (Fdo. el dia 27 de Mayo de mil novecientos treinta y nueve. I. quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas. certificamos: que el testamento que precede este escrito en la lengua castellana que conoce la testadora. hoy en Porac. firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas. Galicano Coronel a quien tengo absoluta confianza. F. 4. En testimonio de todo lo cual. asi como todas las hojas del mismo.

For the court to supply alleged deficiencies would be against the evident policy of the law. This is too much of a clerical error for it effects the very essence of the clause. Moreover. and even by internal circumtantial evidence. implications. Act No. It is claimed that the correction may be made by inference. 10. for the precise purpose of the attestation clause is to certify that the testator signed the will. However. which we have quoted above. The conclusions of law reached by said court are based on it. before it was amended. passed on July 1.R. Record on Appeal). It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of the alleged will. . and internal circumstantial evidence? Even in ordinary cases the law requires certain requisities for the conclusiveness of circumstantial evidence. It declares only that it was signed by the witnesses. entirely suppressed the above-quoted provision. in view of this. which is the . the finding is correctly based on the evidence of record." Both parties are agreed that this is a true and correct copy of the will. entitled "Testate Estate of Carlos Gil. It will be noted that the attestation clause above quoted does not state that the alleged testor signed the will. it is queer that the alleged testator should have made an attestation clause.. . Roberto Toledo y Gil. besides increasing the contents of the attestation clause. this being the most essential element of the clause. . implication. . No. Alleged errors may be overlooked or correct only in matters of form which do not affect the substance of the statement. The appeal being only on questions of law the above finding of the court below cannot be disputed. 2645 of the Philippine Legislature. contained the following provision: . 190. If we cure a deficiency by means of inferences. 1916. This would show that the purpose of the amending act was to surround the execution of a will with greater guarantees and solemnities. L-254. when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line? Following that procedure we would be making interpolations by inferences. Isabel Herreros Vda. The only copy available is a printed form contained in the record appeal in case G. oppositor and appellee. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. If it were otherwise. de Gil. petitioner and appellant vs. considering that the defect is of an essential character and is fatal to the validity of the attestation clause. uniquivocal. This is a fatal defect. The parties agreed that said copy is true and correct. language of the statute as to how the attestation clause should be made. Section 618 of Act No. This would be done in the face of the clear. It is said that the court may correct a mere clerical error. hold that the court can cure alleged deficiencies by inferences. But the absence of such form of attestation shall not render the will invalid if it proven that the will was in fact signed and attested as in this section provided. Without it there is no attestation at all. they would not have so agreed. Could we. At first glance. (P.

ID. some of which are said to be rather strict and others liberal. Consequently. The decision in Nayve vs. Gorecho (50 Phil. 4. to be accurate. but cautiously goes further and makes use of the negative.. ATTESTATION. — An attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective. But the important point is that he attests or certifies his own signature.. This is true. containing the testamentary provisions. ID. The law not alone carefully makes use of the imperative. ID. 152). ID. but not to the attestation clause. as amended. ID. 31). Mojal and Aguilar. 2. SECTIONS 618 AND 634 OF THE CODE OF CIVIL PROCEDURE CONSTRUED. ID. or caused some other person to write his name.. In the case of Gumban vs.) . WILLS. his signature certifies itself. as amended by Act No. supra. but said rules apply to the body of the will. ID. which must be so clear that it should not require any construction. The cases of Saño vs. Quintana. — The right to dispose of the property by will is governed entirely by statute. modified. Mojal and Aguilar ([1924]. ID. the last paragraph of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. for it does not increase the evidence of its authenticity. the court had the following to say: 1.. particularly compared. Adding zero to an insufficient amount does not make it sufficient.. 3.function of the witness. adopted and reaffirmed. 2645. and the fact that the testator signed the will and every page thereof. to enforce legislative intention. supra. under his express direction. 48 Phil. The decision in In re Will of Quintana. (Sano vs. ID. It would be like lifting one's self by his own bootstraps. ALLOWANCE OR DISALLOWANCE. or. 30. in the presence of three witnesses. and such a defect annuls the will. — The Philippine authorities relating to the attestation clause to wills reviewed. It is evident that one cannot certify his own signature.. 506). 47 Phil. upon which the will is written. ID. supra. — The portion of section 618 of the Code of Civil Procedure.. which provides that "The attestation clause shall state the number of sheets or pages used. in the interpretation of section 618 of Act No. The law is here found in section 618 of the Code of Civil Procedure. and Nayve vs. and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other" applied and enforced.. 190. Quintana ([1925]. The parties have cited pro and con several decisions of the Supreme Court... It is said that the rules of statutory construction are applicable to documents and wills.. as amended.

. laying down the following doctrine: 1. as amended. AS AMENDED. however. Gumban vs. Statutes prescribing formalities to be observed in the execution of wills are very strictly construed. the court has somewhat relaxed the doctrine of the Gumban vs. — The attestation clause must be made in strict conformity with the requirements of section 618 of Act No. Moran. 190. 48 Phil.. together with the testatrix. Gorecho. we are of the opinion . Sioca. 405. as amended. y se declara que Gregorio Pueblo murio intestado. and where said evidence has been admitted it should not be given the effect intended. 30). Where said clause fails to show on its face a full compliance with those requirements. 43 Phil.In the subsequent case of Quinto vs. supra. 378). .. WILLS. in his decision made the following pronouncement: . the defect constitutes sufficient ground for the disallowance of the will. 1079. 482). 190. Courts cannot supply the defensive execution of will.. should be given a strict interpretation in order to give effect to the intention of the Legislature. Morata (54 Phil.. En la clausula de atestiguamiento del testamento en cuestion. the court said: In reality. Evidence aliunde should not be admitted to establish facts not appearing on the attestation clause.. (Sano vs.. 409. it appears that it is the testatrix who makes the declaration about the points contained in the above described paragraph. INTERPRETATION OF SECTION 618 OF ACT NO. p. Gorcho case. Roque (43 Phil. as the witnesses. In the case of Aldaba vs.. — Section 618 of Act No. se hace constar que los testadores firmaron el testamento en presencia de los tres testigos instrumentales y que estos firmaron el testamento los unos en presencia de los otros. 481. 2. Navas L. Sioca. Quintana. and it was also signed by the two attesting witnesses. se deniega la solicitud en la que se pide la legalizacion del alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto. ID.). ATTESTATION CLAUSE. ni que estos y aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia de los segundos y vice-versa. ID. the testatrix signed the attestation clause which was complete. Judge Manuel V. but not to the extent of validating an attestation clause similar to that involved herein. 506. En su virtud. (40 Cyc. 190. supra. EVIDENCE TO SUPPLY DEFECTS OF. pero no se hace constar que dichos testigos firmaron el testamento en presencia de los testadores. now Chief Justice of the Supreme Court. have signed the said declaration. (Uy Coque vs. For this reason.) It is true that in subsequent decisions. Navas L.. 50 Phil. The Supreme Court fully affirmed the decision. Uy Coque vs.

and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of section 1 of Act No. 3rd Supplement. the attestation clause reads as follows: Suscrito y declarado por el testador Valerio Leynez. the will was objected to on the ground that. Gaz. De Gorotiza (57 Phil. firmamos el presente cada uno en presencia de los otros. but it was unnecessary. does not necessitate any correction." The language is clear and. and in witness whereof we have each signed the same and each page thereof in the presence of said testatrix and in the presence of each other. No. 745). that said deficiency was cured by the phrase "as well as by each of us in the presence of the testatrix. copied from a form book and reading: "We. 68 Phil. No. Valerio Leynez. whose residences are stated opposite our respective names. In the case of Leynez vs... El testamento consta de dos (2) paginas solamente. This fact . This was considered as a corroboration.. it was held that: An attestation clause to a will." held not to be fatally defective and to conform to the law. 51. Gaz. It was held. do hereby certify that the testatrix.) The attestation clause involved herein is very different. It is clear. appears in the will itself. 52. it did not state that the signature was made in the presence of the witnesses." The words "as well as" indicate that the testatrix signed also in the presence of the witnesses. 7. This very different from the attestation clause in the case at bar. therefore. whose name is signed hereinabove. unlike the attestation clause in the present case. essential words were omitted. como su ultima voluntad y testamento en presencia de todos y cada uno de nosotros. October 18. In the body of the will the testatrix stated that she signed in the presence of each and all of the three witnesses. 381. May 23. The objection was that the attestation clause did not state that the testator and the witnesses signed each and every page of the will. 2645 which provides that: . for the phrase "as well as" in this case is equivalent to "also. In the case of Dischoso de Ticson vs. however. 1st Supplement. Fabie * (40 Off. that in case of the will complied with all the requisites for its due execution. supra. . In the case of Grey vs. however. although the attestation clause stated that "each of the pages of which the said will is composed" was signed by the testatrix at the left margin and at the foot of the fifth page. 437). has publish unto us the foregoing will consisting of two pages as her Last Will and Testament.. 3. Leynez (40 Off. . 1939). In the instant case. y a ruego de dicho testador. 1939. 196. o de los demas y de la del mismo testsador. and has signed the same in our presence. the undersigned attesting witnesses. . (p.

Que estabamos presentes en el momento de leer y ratificar el que el testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro paginasen papel de maquinilla. que asimismo cada uno de nosotros. but the omission is cured by the fact that their signatures appear on every page. En su testimonio firmamos abajo en prsencia del testador y de cada uno de nosotros. 4938. In the case of Rallos vs. Gaz. 14th Supplement. Gaz. There is no reason why wills should not be executed by complying substantially with the clear requisites of the law. Rallos (44 Off. the attestation clause did not state the number of pages of the will. It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the witnesses of each and every page of the will. de Numeriano Rallos. quien despues de leer y de leer y de leerle el mencionado testamento.. decided by the Court of Appeals.. which stated that it consisted of three pages and in fact it had three pages. 23." In the case of Mendoza vs. it was held that this deficiency was cured by the will itself. Que igualmente estabamos presentes cuando el firmo este documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta escritura o testamento. The only clerical error is that it says "testador" instead of "testamento" in the phrase "cada pagina del testador. Pilapil 2 (40 Off.In the case of Alcala vs. However. 9. certificamos que este que hemos firmado es el testamento y ultima voluntad. June 27. . 131. the attestation clause reads as follows: Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. 1947). 1939). 4940. No.. 134-135. The right to dispose of property by will is not natural but statutory. and statutory requirements should be satisfied. Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de atestiguamiento. De Villa 1 (40 Off. firmamos enpresencia de la testadora y en presencia de cada uno de nosotros. the attestation clause (translated in Spanish) reads as follows: Nosotros. firmo y marco con su dedo pulgar derecho en nuestra presencia y en presencia de cada uno de nosotros. 1941)." The word "tambien" renders unnecessary the use of the verb "firmamos. los testigos. que se ha redactado en cuatro paginas. April 18. No. Gaz. y despues de que ella dio su conformidad. October 23. leaving it to the courts to supply essential elements. This attestation clause is different from that involved in the present case. 1855. los testigos. The above attestation clause is substantially perfect. No. 12.

. in derogation of testator's wishes. Rep. 80 Pac.. 103 Atl. . 94. 101. . and the heir can be deprived of his inheritance only by a compliance with this mode. 52 Am. .J. shows a compliance with the statute. JJ. The question is not one of his intention. With costs against the appellee. and is available only upon the compliance with the requirements of the statute. .. The mode so prescribed is the measure for the exercise of the right. . It is possible. . but the statute says he had not. . . even if a situation may be presented apparently meritorious. the genuine intention is frustrated. 533. For that purpose only intention of the Legislature. Padilla and Reyes. St. For the purpose of determining whether a will has been properly executed. J. 260 Pac. a decedent may have thought he had made a will. A. but we cannot break down the legislative barriers protecting a man's property after death.The right to make a testamentary disposition of one's property is purely of statutory creation. and cannot be disregarded. L.) In interpreting the legislature's thought. and whether the will as presented. . 460. or . in preference to the risk of giving effect to or facilitating the formation of spurious wills. . the chief purpose of which is to see that the testator's wishes are observed. . has taught of it best and has therefore determined. in some or many cases. failed to do. R. dissenting: . Churchill's Estate.. It is so ordered. C. the intention of the testator in executing it is entitled to no consideration. R. It may happen . courts have rigidly opposed any exception tending to weaken the basic principle underlying the law. Pablo. 30 A. Separate Opinions TUAZON. . . the decision appealed from is reversed. 701.. Moran. . ." or. . In re Seaman's Estate.. . . . . . and whenever that happens. truly expressing the intertions of the testator are made without observations of the required forms. can be considered by the court. Estate of Walker. 700. to run the risk of frustrating (that intention. .. . The formalities which the Legislature has prescribed for the execution of a will are essential to its validity. The Legislature . as expressed in the language of the statute. 420. wills .. 42 Pac. 110 Cal.. . pp. 30 L.) In view of the foregoing. fraudulently imposing spurious wills on his effect on his estate. The evil probably to arise by giving to wills made without any form. (In Re: Maginn. denying the probate of the alleged will and declaring intestate the estate of the deceased Carlos Gil. 419. 815. It has always been the policy of this court to sustain a will if it is legally possible to do so. 104. that . but of what he actually did. by the absence of forms. Bengzon. concur. 387.

The decision takes for granted that the will was written just as it was copied in the
stipulation of facts by the parties. But counsel for appellee makes the correctness of the
copy an issue thereby raising the question of not whether the burnt will possessed the
statutory requirements but whether the copy is erroneous. Since this is a chief feature
on which the appellee's case is built; since, in fact, the objection to form of the
attestation clause, with which the decision wholly deals, would disappear if the
appellee's contention were well founded, it is proper that in this dissenting opinion we
should accord the matter at least a passing notice.
It may be stated as background that the original of the will was filed in the Court of First
Instance of Manila in 1943; that in 1945, before the will came up for probate, it was
destroyed by fire or looters; that in the probate proceeding after liberation, the parties
submitted an agreed statement of facts in which the will was reproduced as copied in
the record on appeal in another case docketed in this court on appeal as G.R. No. L254 and decided on April 30, 1948. It further appears from the record of that case and
from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir
and had no interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation clause is
truncated and meaningless. The last of the compound sentence in incomplete, lacking
an adjective phrase. Counsel for appellee contends that the phrase "ha sido firmado por
el testador" or equivalent expression between the words "del mismo" and the words "en
nuestra presencia" should be inserted if the sentence is to be complete and have sense.
The attestation clause with the inclusion of the omitted phrase, which we italicize should
read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el
testamento que precede escrito en la lengua castellana que conoce la testador,
compuesto de las paginadas utiles con la clausula de atestiguamiento paginadas
correlativamente en letras y numeros en la parte superior de la casilla, asi como
todos las hojas del mismo (Ha sido firmado por el testador) en nuestra presencia
y que cada de nosotros hemos atestiguado y firmado dicho documento y todas
las hojas del mismo presencia del testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The probabilities of
error in the copy are enhanced by the fact that the form of the will was not in
controversy. The form of the will being immaterial, it is easily conceivable that little or on
care was employed in the copying thereof in the pleading or record on appeal above
mentioned. The absence of the signature of the testator on the first page of the copy is
an additional proof that little or on pain was taken to insure accuracy in the transcription.
The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision
says. Certainly, Attorney Mariano Omaña, who drafted the whole instrument and signed

it as an attesting witness, knew the law and, by the context of the whole instrument, has
shown familiarity with the rules of grammar and ability to express his idea properly.
Read in the light of these circumstances — without mentioning the evidence or record,
not objected to, that the testator signed the will in the presence of the attesting
witnesses — so important an omission as to make the sentence senseless — granting
such omission existed in the original document-could not have been intentional or due
to ignorance. The most that can be said is that the flaw was due to a clerical mistake,
inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was "reproduced
in the record on Appeal" above mentioned is bound by the agreement. This is not an
absolute rule. The binding effect of a stipulation on the parties does not go to the extent
of barring them or either of them from impeaching it on the score of clerical error or
clear mistake. That there was such mistake, is indubitable. It is noteworthy that the
opponent and appellant herself appears not to have noticed any defect in the attestation
clause as copied in the stipulation. It would seem that in the court below she confined
her attack on the will to the alleged failure of the testator to sign the first page. We say
this because it was only the alleged unsigning of the first page of the document which
the trial court in the appealed decision discussed and ruled upon. There is not the
slightest reference in the decision, direct or implied, to any flaw in the attestation clause
— which is by far more important than the alleged absence of the testator's signature on
the first page.
As stated the problem posed by the omission in question is governed, not by the law of
wills which requires certain formalities to be observed in the execution, but by the rules
of construction applicable to statues and documents in general. And this rule would
obtain even if the omission had occurred in the original document and not in the copy
alone. In either case, the court may and should correct the error by supplying the
omitted word or words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que
en su redaccion se ha incurrido en omisiones que la razon y el sentido comon
pueden suplirlas sin alterar ni tergiversar la intencion tanto del testador como la
de los tres testigos que intervinieron en el otorgamiento de la misma. Teniendo
en cuenta la fraselogia de la segunda parte de la clausula se observara que las
omisiones, aunque son substanciales, consisten en meros errores gramaticales
que los tribunales, en el ejercicio de su discrecion y en la aplicacion de las reglas
de interpretacion de documentos, pueden subsanarlos para dar efectividad a la
intencion y hacer que el conjunto de los terminos de la clausula de atestacion
surtan sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la correccion
de los errores gramaticales de que misma adolece, incluyendo la insercion del

verbo "firmamos" que se omitio involuntariamente, esta de acuerdo con las
reglas fundamentals de interpretacion de documentos segun las cuales se debe
hacer prevalecer siempre la intencion del que haya redactado el instrumento (art.
288, Cod. de Proc. Civ.; Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187,
pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas conforme con
la justificia en vista de que se ha presentado prueba alguna que insinue siquiera
que en el otorgamiento del testamento se ha cometido dolo o fraude con el
animo de perjudiar a cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14.
Suplemento, No. 23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court
whenever necessary to effectuate the testator's intention as expressed in the will; but
not where the effect of inserting the words in the will would alter or defeat such
intention, or change the meaning of words that are clear and unequivocal." On pages
50, 51, the same work says: "To aid the court in ascertaining and giving effect to the
testator's intention in the case of an ambiguous will, certain rules have been established
for guidance in the construction or interpretation to be placed upon such a will, and in
general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to
construction of documents, the same work, in Vol. 59, p. 992, says: "Where it appears
from the context that certain words have been inadvertently omitted from a statute, the
court may supply such words as are necessary to complete the sense, and to express
the legislative intent.
Adding force to the above principle is the legal presumption that the will is in
accordance with law. (2 Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation clause was
drawn as the draftsman intended, that the mistake in language in said clause was not
inadvertent, and consider the case on the premise from which the court has approached
it; is the decision well grounded, at least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case, in which the
validity of the will was sustained, found its way into this court. (Aldaba vs. Roque, 43
Phil., 378). The case was more than four-square behind the case at bar. There the
departure from the statutory formality was more radical, in that the testator took charge
or writing the entire attestation clause in the body of the will, the witnesses limiting their
role to signing the document below the testator's signature. Here, at most, the testator
took away from the witness only a small part of their assigned task, leaving them to
perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a unanimous
decision in banc, through Mr. Justice Villamor said (syllabus): "When the attestation
clause is signed by the witnesses to the instruments besides the testator, such

on the other hand. we will dwell on the subject further. 43 Phil. unanimous court. 1007. 51. 40 Off.attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act No..) 43 Phil. Gaz. 194. 216. Gonzales (1929). F. So when an interpretation already given assures such ends.. must be disregarded. p. Pañganiban (1934). That ruling should set the present case at rest unless the court wants to discard it. Gaz.. Nayve vs.. But the so-called liberal rule does not offer any puzzle or difficulty. 40 Off. Fabia (1939)2.. 40 Off." In the Abangan case. p. De Gorostiza. Sabado vs... Abella (1922. Cartegana (1931). Gaz. Alcala (1930). 145. 57 Phil. Coronel (1923). No. 40 Off. 57 Phil. 1. Gorostiza (1932). the dividing line is drawn with precision. The majority decision says. 46 Off. 150. 131. A late example of the former views may be found in the decision in Rodriguez vs. 211. Mojal (1924). 104. 152. Gaz. Martir (1940)4. Aldaba vs. Ozoa (1933). Liboro (1948)8... 3. 476. 55 Phil.. Gaz. 215. 57 J.. Rey vs. 46 Phil.. Vergel de Dios (1924). 1855. Grey vs. Gaz. and we quote: "If we cure a deficiency by means of inferences. De Gala vs. Justice Avanceña. p. Abangan (1919). 59 Phil... 1st Suppl. (1922).. 7. Suppl. and Lopez vs." Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs. Sebastian vs.. Pilapil (1941)6 40 Off. Pecson vs. to avoid substitution of wills and testaments and to guaranty their truth and authenticity. No. 40 Phil. any other interpretation whatsoever.. 922. is Abangan vs. Leynez vs. 40 Off. 47 Phil. 196. 437.. later Chief Justice. nor does it open the door to serious consequences. 653.. No. Unson vs. But. Therefore the laws on this subject should be interpreted in such a way as to attain these primodial ends. Yap (1939)1. p. Alcala vs. 3. 3rd Suppl. No... 2645. useless and frustrative of the testator's last will. Rodriguez vs. No. Martir vs. This Court noted in Dichoso de Ticson vs. p. 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. 42 Phil. Ticson vs. Garcia (1921). 53 Phil. No. Testamentaria de M.. We think it is good law still. that adds nothing but demands more requisites entirely unnecessary. 282. sanctioning a literal enforcement of the law. The decisions we have cited to tell us when and where to stop. On the possibility that this is the intention. Fernandez vs. 1844. 494. when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same questions might well have been asked in the case above cited by the opponents of the new trends. Gaz. They say "Halt" when and where evidence aliunde . Fernandez (1941)5. 1st Suppl. 378. 14th Suppl. 7th Suppl. De Villa (1941)7. Roque (1922). The basic case in the other direction. 437. predicated on reason. 56 Phil. 45 Phil. 11. speaking through Mr. oftcited approvingly in later decisions." That was good doctrine when it was announced. observed: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud. Leynez (1939)3. "that there have been noticeable in the Philippines two divergent tendencies in the law of wills — the one being planted on strict construction and the other on liberal construction. Gaz. 23. 40 Off. p. Mendoza vs. even though the facts recited in said attestation appear to have been make by the testator himself.

it would be more appropriate to say that a man can and generally does himself pull the bootstraps to put the boots on. If the formalities are only a means to an end and not the end themselves. It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by his own bootstraps. that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. the testator said that he did and the witnesses by their signatures in the will itself said it was so. does not look to us quite well placed. outworn worship of form in preference to substance. That. to forsake the antiquated. For the testator. To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate consequences. as far as possible. and to prevent. 481). Under physical law a man cannot raise his body from the ground by his own bare hands without the aid of some mechanical appliance. They only permit a probe. It has been said. If the witnesses here purposely omitted or forgot that the testator signed the will in their presence. At least. at least not for more than a flitting moment. The will is the testator's and the intervention of attesting witnesses is designed merely to protect the testator's and not anybody else's interest. For the adverse party concedes the genuineness of the document. to do so would be a contradiction. who is desirous of making a valid will. the genuineness is super obvious. and experience has known. It was the realization of the injustice of the old way that impelled this court. But there is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. it must be conceded. so we believe. and that end is achieved by ." The simile. to ascertain its meaning and to determine the existence or absence of the formalities of law. This clear. Coming to execution of wills. What better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation clause. an exploration within the confines of the will. sharp limitation eliminates uncertainly and ought to banish any fear of dire results. mental incapacity of the testator of fraud. we say with due respect. No extraneous proof was necessary and none was introduced or taken into consideration. The case at hand comes within the bounds thus defined. If we were to make a metaphorical comparison.to fill a void in any part of the document is attempted. any chance of substituting one instrument for another (1 Page on Wills. The rationale of our dissent is that he is not. is the effect in this case of this court's rejection of the will under consideration. and there is not the slightest insinuation of undue pressure. If the sole purpose of the statute is to make it certain that the testator has definite and complete intention to pass his property. They do not allow the courts to go outside the will or to admit extrinsic evidence to supply missing details that should appear in the will itself. we see no legitimate practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter.

. "both parties . JJ. agreed that the will as transcribed in the record on appeal in Case G. Toledo's legal right to intervene was questioned by the proponent of the will. they agree on one thing — that as long as the testator performs each of those acts the courts should require no more.: This appeal is before us on a motion for reconsideration of this court's decision. thereby making the dissenting opinion. and Pilar Gil Vda. L-254 is true and a correct copy. what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience. Whether the courts profess to follow the harsher rule. The chief requirements of statutes are writing. The will in question was presented for probate in the Court of First Instance of Manila in 1943 with Roberto Toledo y Gil. the vote upon reconsideration was six for affirmance and five for reversal. and the objection was sustained in an order which was affirmed by this court in G. necessitating its reconstitution after liberation. todos mayores de edad. No. 1953 TUASON. As a result of the latter decision. . whether to follow the milder rule. certificamos: que el testamento que precede escrito en la lengua castellana que canoce la testador. RESOLUTION March 20. concur. No. and attestation and signature of three witnesses.) Paras. Under the circumstances. and early in 1945. signature by the testator. which had been filed. L-254.. this resolution will largely be confined to a restatement of that dissenting opinion. decedent's sister opposing the application. The will consisted of only two pages. compuesto de dos paginas utiles con la clausula de atestigamiento paginadas . decedent's nephew. along with the will. The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal. In the reconstitution. de Murciano. the prevailing rule of the case. 481. a stipulation of facts was submitted in which.another method slightly different from the prescribed manner. the record. was destroyed. and the attestation clause as thus copied reads: NOSOTROS los que suscribimos. R. Toledo was eliminated from the case and did not appear when the trial was resumed. Montemayor and Bautista Angelo. 484. Feria. R. (1 Page on Wills. according to the appealed order. J. Whereas formerly six justices voted for reversal and five for affirmance of the probate court's order admitting the will to probate. before the application was heard on the merit.

This defect is the main basis of the appellant's sole assignment of error. . (Fdo. Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent expression between the words "del mismo" and the words "en nuestra presencia" should be inserted if the attestation clause is to be complete and have sense. . so important an omission as to make the clause or sentence senseless could not have been made. (Fdo. It seems obvious that the missing phrase was left out from the copy. intentionally or otherwise. The absence of the signature of the testator on the first page of the copy is an additional proof that little or no pain taken to insure accuracy in the transcription. This is not an absolute rule. must have been written with utmost concern. The mistake just pointed out clearly brings the case within the exceptions of the rule. With this insertion the attestation clause would read ". knew the law and. by its importance.) MARIANO OMAÑA It will be noted from the above copy that the last of the compound sentence is truncated and meaningless. The binding effect of a stipulation on the parties does not go to the extent of barring either of them from impeaching it on the score of clerical error or clear mistake..) ALFREDO T. . Quite aside from all this.correlativamente en letras y numeros en la parte superior de la casilla.) RAMON MENDIOLA. has shown familiarity with the rules of grammar and ability to express his idea properly. In the light of these circumstances and of further fact that the clause was brief and. asi como todas las hojas del mismo. (Fdo. in the original. The able counsel for the proponent of the will could not possibly have subscribed to the agreement if they . ." The point is well taken. the testator was presumed to know the law. The probabilities of error in the copy are enhanced by the fact that the form of the Will was not controversy in Toledo's appeal. The form of the will being immaterial. The appearance of "la testadora" in the copy instead of "el testador" is another indication of the haste and carelessness in the transcription. There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the Record on appeal" is bound by the agreement. as the trial court says. Certainly. it is easily conceivable that little or no care was employed in transcribing the document in the agreement or record on appeal. asi como todas las hojas del mismo han sido firmadas por el testador en nuestra presencia . by the context thereof. who drew the instrument and signed it as an attesting witness. Attorney Mariano Omaña. RIVERA. en nuestra presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

de Proc. Cod. esta de acurdo con las reglas fundamentales de interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la intencion del que haya redactado el instrumento (art 286. Of. In either case. J. but by the rules of construction applicable to statutes and documents in general. The problem posed by the omission in question is governed. 28 R. 14. consisten en meros errores gramaticales que los tribunales.. In Testamentaria del finado Emiliano Alcala. a similar situation arose and the court said: Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su redaccion se ha incurrido en omisiones que la razon y el sentido cumon pueden suplirlas sin altenar ni tergiversar la intencion tanto del testador como la de los tres testigos que intervenieron en el otorgamiento de la misma. is applicable to . 226).. pages. C. 82. 83. pueden subsanarlos para dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de atestacion surtan efectos. Fil. 40 Gaz. Teniendo en cuenta la fraseologia de la segunda parte de la clausula se observara que las omisiones." And referring to construction of statues which. en el ejercicio de su discrecion y en la aplicacion de las reglas de interpretacion de documentos. as has been said. L. La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia en vista de que no se ha presentado prueba alguna que insinue siquiera que en el otorgamiento del testamiento se ha cometido dolo o fraude con el animo de perjudicar a cualquiera. 132. 224. 187. incluyedo la insercion del verbo "firmamos" que se omitio involuntariamente. and in general a will should be construed according to these established rules of construction. Civil. certain rules been established for guidance in the construction or interpretation to be placed upon such a will. 225. or change the meaning of words that are clear and unequivocal. the same work says: "To aid the court in ascertaining and giving effect to the testator's intention in the case of an ambiguous will. No. not by the law of wills which requires certain formalities to be fulfilled in the execution. 131. sec. La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los errores gramanticales de que misma adolece..) From 69 C. Supplemento. the court may and should correct the error by supplying the omitted word or words.had noticed the incomplete sentence in the copy without making an objection or reservation. pags. 45 Jur. 23. Testamentaria de Emiliano Alcala. And this rule would obtain whether the omission occurred in the original document or in the copy alone. we quote: "Words omitted from a will may be supplied by the court whenever necessary to effectuate the testator's intention as expressed in the will: but not where the effect of inserting the words in the will would alter or defeat such intention. Pecson contra Coronel. aunque son substanciales." On pages 50 and 51.

Referring to "the lack of attestation clause required by law. See Aldaba vs. 43 Phil. De Gorostiza (1922). tells us that "Where it appears from the context that certain words have been inadvertently from a statute. in a unanimous decision in banc. (2 Page on Wills 840. 57 Am. in which the validity of the will was sustained. 40 Phil. F. Here.. The basic rule in the other direction. Justice Villamor said in the Adalba-Roque case (syllabus): When the attestation clause is signed by the witnesses to the instruments.. 476. found its way into this court. C. Pampanga. That ruling should set the present case at rest unless we want to revert to the old. There the departure from the statutory formality was more radical. sanctioning a literal enforcement of the law. 378. 150. in Vol. besides the testator. predicated on reason. el dia 27 de marzo de mil novecientos treinta y nueve.." The answer is in the negative. quienes a su vez firmaron cada una de dichas paginas y la clausula de atestiguamiento en mi presencia cada uno de ellos con la de los demas.." Adding force to the above principle is the legal presumption that the will is in accordance with law. As early as 1922 a similar case. at the most. the court may supply such words as are necessary to complete the sense. I. Jur.. leaving to them the rest. is Abangan vs. even though the facts recited in said attestation clause appear to have been made by the testator himself. was the mistake fatal? Was it. cured by the testator's own declaration? to wit: "En testimonio de lo cual. Abangan (1919). 437.) But let it be assumed.. This court noted in Dichoso de Ticson vs. and to express the legislative intent. or was it not. hoy en Porac. through Mr.construction of documents. Alcala (1930). "that there have been noticeable in the Philippines two divergent tendencies in the lie of wills — the one being planted on strict construction and the other on liberal construction. 55 Phil. 2645. in a long line of what we believe to be better-considered decisions. oft-cited approvingly in later decisions. Roque. that the attestation clause was drawn exactly as it was copied in Toledo's record on appeal. the testator took away from the witnesses only a small part of their assigned task. firmo este mi testamento y en el margen izquierdo de cada una de sus dos paginas utiles con la clausula de atestiguamiento en presencia de los testigos." . expressly abandoned doctrine. the witnesses limiting their role to signing the document below the testator's signature. S. 992. That case was more than foursquare behind the case at bar. such attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of Act No.. J. 57 Phil. A late example of the former views be found in the decision in Rodriguez vs." this court. p. for the sake of this decision only. 720. 59. in that the testator took charge of writing the entire attestation clause in the body of the will.

p. 282. 59 Phil. when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same question might well have been asked by the opponents of the new trends in the cases above cited. Sabado vs. 211." Subsequent decisions which followed and adopted the Abangan principle were: Avera vs. Gaz. useless and frustrative of the testator's last will. 46 Off. sharp limitation eliminates uncertainty and ought to banish any fear of dire results. 40 Off. Yap (1939). Fernandez (1941).. Testamentaria de N. nor does it open the door to serious consequences.. 215. 3rd Suppl. 57 Phil.. 46 Phil. later Chief Justice. 57 J. No. 3. 40 Off. a unanimous court. 145. to avoid substitution of wills and testaments and to guaranty their truth and authenticity.In the Abangan case. 1844. Leynez vs. 152. Gaz. 14th Suppl. Gaz. p. on the other hand. 216. the testator said that he did and the witnesses by their signatures in the will itself said it was so. 922. Rodriguez vs. Sebastian vs. 7. Alcala vs. 47 Phil. Fernandez vs. Unson vs.. Pecson vs. Cartagena (1931). No. Liboro (1948). 40 Off. Gaz. Justice Avanceña. 1. an exploration within its confines. p. But. It was the realization of the injustice of the old . 40 Off. The later decisions do tell us when and where to stop... Coronel (1923). 131. Mojal (1924). Neyve vs. Roque (1922). and Lopez vs. 494. 43 Phil. Garcia (1921). The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or forgot to say that the testator signed the will in their presence. Suppl. 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. It is objected that "If we cure a deficiency by means of inferences. Martir vs. p. No. But the so-called liberal rule does not offer any puzzle or difficulty. To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to unfortunate consequences. Therefore the laws on this subject should be interpreted in such a way as to attain these primodial ends.. So when an interpretation already given assures such ends. Rey vs. must be disregarded. 196. This clear. 437... 1007. Gaz.... 3. 40 Off. No. De Gala vs. 104.. Martir (1940). 51. Abella (1922). 43 Phil. to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. Gaz. observed: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud. 45 Phil. Gorostiza (1932). 653. 53 Phil. 194. Ticson vs.. De Villa (1941). Gaz. 42 Phil. p.. 7th Suppl. Mendoza vs. Ozoa (1933). They only permit a probe into the will. 56 Phil.. Gonzales (1929). 1855. 378. Panganiban (1934)... F. Aldaba vs. that adds nothing but demands more requisites entirely unnecessary. Pilapil (1941).. they draw the dividing line with precision. Vergel de Dios (1924). No. speaking through Mr. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. 23. 11. 1st Suppl. 40 Off. Gaz. Fabia (1939). p. 1st Suppl. 40 Off. No extraneous proof was necessary and none was introduced or taken into consideration. No. any other interpretation whatsoever. Grey vs.. Leynez (1939).

. practical reason for objecting to the testator instead of the witnesses certifying that he signed the will in the presence of the latter. who was a residuary legatee under the will and who is alleged to have died on February 6. the genuineness is super obvious. to do so would be a contradiction. who is desirous of making a valid will. would be the effect in this case if the will under consideration were rejected. 1949. 481). the intervention of attesting witnesses being designed merely to protect his interest. that the former signed both pages or sheets of the testament. what has been done by the testator and the witnesses in the execution of the instant will should satisfy both law and conscience. A motion dated February 17. as far as possible. For the adverse party now concedes the genuineness of the document. If the sole purpose of the statute in requiring the intervention of witnesses is to make it certain that the testator has definite and complete intention to pass his property. to forsake the antiquated. It has been said. that the mechanical system of construction has operated more to defeat honest wills than prevent fraudulent ones. the appellee's case is much stronger on this point for the reason that there is not only speculative but also positive basis for the conclusion that the testator's signature was affixed to the first page of the original. and to prevent.way that impelled this court. or fraud. At any rate. any chance of substituting one instrument for another (1 Page on Wills. If the formalities are only a means to an end and not the end themselves. Coming to execution of wills. A second ground of attack on the questioned will is that the first page or sheet thereof does not bear the testator's signature. For the testator. The discussion on the correctness of the copy of the attestation clause amply answers this objection in fact. 1953. That. There is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive law. respectively. was filed after the motion for reconsideration was deliberated and voted upon. in behalf of the minor children of Carlos Worrel. and there is not the slightest insinuation of undue pressure. so we believe. mental incapacity of the testator. The rationale of this decision is that he is not. and experience has shown. it would be more correct to say that a man can and generally does himself pull the bootstraps when he puts his boots on. must be conceded. and that end is achieved by another method slightly from the prescribed manner. Upon the foregoing consideration. the order of the probate court is affirmed with costs." The simile does not look to us quite well placed. If we were to make a metaphorical comparison. we see no legitimate. Both the testator and the attesting witnesses stated in the will and in the attestation clause. It is said that for the testator to certify that he signed the will in the witnesses' presence "would be like lifting one's self by his own bootstraps. what better guaranty of the genuineness of the will can there be than a certification by the testator himself in the body of the will so long as the testator's signature is duly authenticated? Witnesses may sabotage the will by muddling and bungling it or the attestation clause. outworn worship of form in preference to substance. The will is of the testator's own making.

Montemayor. For this reason. dissent. concur. PABLO and BENGZON.. it is the sense of the court that the children's intervention with the consequent further delay of the decision would not serve the best interest of the parties. the motion is denied. Padilla and Reyes." Counsel for the appellant objects to the motion on the ground that the movants having only a contingent interest under the will are not of right entitled to intervene. dissenting: I dissent on the ground set forth in my opinion rendered in this case. and allowed to intervene and file "A Supplementary Memorandum in Support of Appellant's (Appellee's?) Motion for reconsideration. JJ. JUGO. JJ. As this case has already been considerably delayed and thoroughly considered and discussed from all angles. . Feria.The motion prays that a guardian ad litem be appointed for the said children.. JJ. Paras.. Bautista Angelo and Labrador.

R. he withdrew the sums of P518.: This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug.27 as deficiency estate tax. No.147. 1980. Vitug's estate with her (Mrs. SARMIENTO. naming private respondent Rowena Faustino-Corona executrix.66. petitioner Romarico G. 1990 ROMARICO G. P518.749.731. 2 the alleged advances consisted of P58. on November 10. respondents. VITUG. Romarico G.40 spent for the payment of estate tax. Metro Manila. J.749. Rufino B. vs. As found by the Court of Appeals. . we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. 1985." 3 According to Mr.27 and P90.A.834.. pending probate. Javier Law Office for petitioner. On January 13. Makati. which he claimed were personal funds. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667. petitioner. Vitug. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA. S. plus interests. Quisumbing.99 from savings account No. 82027 March 29. who died in New York. U.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. 35342-038 of the Bank of America.99 as "increment thereto. Vitug's) widower. In our said decision. and P90. Vitug.834. Torres & Evangelista for private respondent.

the order of respondent Judge dated November 26." 8 and secondly. assuming that it is a mere donation inter vivos. petition) is hereby set aside insofar as it granted private . . She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate.731. 5 The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. for any payment or withdrawal made for our abovementioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667. it is a prohibited donation under the provisions of Article 133 of the Civil Code.66 .. the Court of Appeals. held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code.. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK). there was allegedly no ground for reimbursement. Vitug.On April 12. 35342-038 were conjugal partnership properties and part of the estate. and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors. 1985. We further agree with each other and the BANK that the receipt or check of either. and shall be payable to and collectible or withdrawable by such survivor or survivors." 7 On the other hand. 1970. in the petition for certiorari filed by the herein private respondent. 1985 (Annex II. 9 The dispositive portion of the decision of the Court of Appeals states: WHEREFORE. any or all of us during our lifetime. and hence. or the receipt or check of the survivor or survivors. that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime. Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No." 4 Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19.

we must give . assails the appellate court's ruling on the strength of our decisions in Rivera v. A will has been defined as "a personal. but the same order is sustained in all other respects. 11 and Macam v. With costs against private respondent. respondent Judge is directed to include provisionally the deposits in Savings Account No. In the absence. 15 In this case. their joint holdings: xxx xxx xxx . Rivera v. solemn. the surviving spouse. of clear proof to the contrary. revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. but simply.. Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank. Vitug. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant." But it not infrequently happens that a person deposits money in the bank in the name of another. People's Bank and Trust Co.. The conveyance in question is not. Vitug for reimbursement of his alleged advances to the estate. which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased. 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other. People's Bank and Trust Co. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. In addition. which should be embodied in a will. 10 In his petition. and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. first of all. in the inventory of actual properties possessed by the spouses at the time of the decedent's death. then." 14 In other words. 13 The petition is meritorious. one of mortis causa.. 35342-038 with the Bank of America. Makati. the bequest or device must pertain to the testator. the monies subject of savings account No. nullifies the assumption that Stephenson was the exclusive owner of the bank account.respondent's motion to sell certain properties of the estate of Dolores L. 35342-038 were in the nature of conjugal funds In the case relied on.

having been acquired during the existence of the marita. and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. Gatmaitan. 18 it was held: xxx xxx xxx This Court is of the opinion that Exhibit C is an aleatory contract whereby. as any other contract. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first. for obvious reasons. that they were joint (and several) owners thereof. the time of death determining the event upon which the acquisition of such right by the one or the other depended. 19 xxx xxx xxx There is no showing that the funds exclusively belonged to one party. Juana would become the owner of the house in case Leonarda died first.full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera. belonged to the survivor. By virtue of Exhibit C. one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. upon the death of either. if any. Secondly. As already stated. because it was to take effect after the death of one party. is binding upon the parties thereto. Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. 20 Neither is the survivorship agreement a donation inter vivos. according to article 1790 of the Civil Code. and that either of them could withdraw any part or the whole of said account during the lifetime of both. This contract. Inasmuch as Leonarda had died before Juana. it is not a donation . 17 xxx xxx xxx In Macam v. and the balance. relations. the latter thereupon acquired the ownership of the house. and hence it must be presumed to be conjugal.

as held by the Court of Appeals. the risk was the death of one party and survivorship of the other. However. has been categorized under the second. one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain. by way of a joint and several bank account. For instance. and insurance have been held to fall under the first category. It is also our opinion that the agreement involves no modification petition of the conjugal partnership. The validity of the contract seems debatable by reason of its "survivor-take-all" feature. but in reality. which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal. or which is to occur at an indeterminate time. the term being death. if it be shown . 2010. the sale of a sweepstake ticket. They did not dispose of it in favor of the other. 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Such agreements are permitted by the Civil Code. By an aleatory contract. the element of risk is present. Certainly. 24 Under Article 2010 of the Code: ART. Under the aforequoted provision." A survivorship agreement. the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain. a transaction stipulating on the value of currency. In the case at bar. 35342-038. In the case at bar. say. they merely put what rightfully belonged to them in a money-making venture. 25 In either case. while a contract for life annuity or pension under Article 2021. that contract imposed a mere obligation with a term. the spouses are not prohibited by law to invest conjugal property. as we have warned: xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law." (2) "which is to occur at an indeterminate time. more commonly denominated in banking parlance as an "and/or" account. it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.between the spouses because it involved no conveyance of a spouse's own properties to the other. et sequentia. when the spouses Vitug opened savings account No.

we hold that the court was in error.in a given case that such agreement is a mere cloak to hide an inofficious donation. Republic of the Philippines SUPREME COURT Manila EN BANC G.. the decision of the respondent appellate court. 1987. it may be assailed and annulled upon such grounds. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. No such vice has been imputed and established against the agreement involved in this case. Being the separate property of petitioner. the latter has acquired upon her death a vested right over the amounts under savings account No. Vitug having predeceased her husband. in order to frustrate our laws on wills. 26 xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes. L-10907 June 29. petitioner. as held by the respondent court. ETC.. or. PRIMITIVO L. to transfer property in fraud of creditors. No. vs. No costs. . WHEREFORE. and its resolution. are SET ASIDE. SO ORDERED. GONZALEZ. The conclusion is accordingly unavoidable that Mrs. 1988. respondents. Vitug. and conjugal partnership. HON. dated February 9. it forms no more part of the estate of the deceased. ET AL. or to defeat the legitime of a forced heir.R. dated June 29. 1957 AUREA MATIAS. donations. 35342-038 of the Bank of America.

and. be set aside and that she be appointed special co-administratrix. Basilia Salud moved for the dismissal of Horacio Rodriguez. Meanwhile. Miss Victorina Salud. whereupon respondent Judge by an order. Subsequently. . Aurea Matias brought the matter on appeal to this Court (G. who is hereby appointed as co-administrator. at the age of 92 years. Basilia Salud. No. in connection with Special Proceedings No. This motion was not granted. to "be assisted and advised by her niece. opposed the probate of her alleged will. L-10751). 1956. Gonzales Orense for petitioner." Said order. in his stead of Ramon Plata. Santos Matias and Rafael Matias — is. after appropriate proceedings." On March 8. Victorina Salud. Although notified of this order. CONCEPCION. Instead. 1956. Aquino for respondents. Aurea Matias. The motion was set for hearing on February 23. 5213 of said court. Gonzales. pursuant to said instrument. 1952. dated February 8. and Basilia Salud introduced evidence in support of said charges. 1956. as Judge of the Court of First Instance of Cavite. issued an order. Rodriguez did not appear on the date last mentioned. who died single on May 8. as special administrator of the estate of the deceased. and. likewise. sustaining said opposition and denying the petition for probate. relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special administratrix thereof. found Rodriguez guilty of abuse of authority and gross negligence. the court. accordingly. 1956. a first cousin of the deceased. 1956. entitled "Testate Estate of the Deceased Gabina Raquel. . interpreter and adviser of Basilia Salud. Santiago Salud. jointly with Horacio . without bond. Ramon Plata . or on February 17. he filed an urgent motion praying for additional time within which to answer the charges preferred against him by Basilia Salud and for another postponement of said hearing. dated February 27.J. appointed therein as executrix thereof. Aurea Matins asked that said order of February 27. J." who "shall always act as aide. likewise. Policarpio Salud. presided over by respondent Judge." On May 15.: Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. 1956. Venancio H. Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting to be the last will and testament of her aunt.R. 1956. provided that "Basilia Salud shall be helped by Mr. The heir to the entire estate of the deceased — except the properties bequeathed to her other niece and nephews. and the appointment. namely. on which date the court postponed the hearing to February 27. where it is now pending decision. Gabina Raquel. Primitivo L. 1952.

Rodriguez. on account of her antagonism to said Aurea Matias — she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate of the alleged will of the deceased — and proposed that the administration of her estate be entrusted to the Philippine National Bank. the executrix appointed in the alleged will of the deceased. the Bank of the Philippine Islands. or on March 21. 1956. Later on. totally blind and physically incapacitated to perform the duties of said office. upon the ground that Basilia Salud is over eighty (80) years of age. 1956. and Victorina Salud and Ramon Plata. said respondents filed another motion praying for permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite. apart from denying her any such representation. 1956. 1956. On June 27. or which may be due. it is argued that petitioner should have preference in the choice of special administratrix of the estate of the decedent. on March 24. but objected to the appointment. Before any action could be taken thereon. and that said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her alleged will. due to old age. Basilia Salud tendered her resignation as special administratrix by reason of physical disability. namely. 1956. 1956. which respondent judge granted on June 10. or on June 18. on March 17. the Monte de Piedad. to the estate of the deceased and to collect all the produce of her lands. or any other similar institution authorized by law therefor. This motion for reconsideration was denied on March 26. Basilia Salud. in her place. Aurea Matias sought a reconsideration of said order of March 10. 1956. 1956. for the purpose of annulling the above mentioned orders of respondent Judge. that until its final disallowance — which has not. the management was given to persons partial to her main opponent. petitioner instituted the present action against Judge Gonzales. and recommended the appointment. 1956. Moreover. Shortly afterwards. This motion was denied in an order dated March 10. as yet. upon the ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. of Victorina Salud. should the court be reluctant to appoint the movant as special administratrix of said estate. or on July 10. respondents Ramon Plata and Victorina Salud requested authority to collect the rents due. Ramon Plata and Victorina Salud — "for the management of the estate of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent. that Basilia Salud was made . which maintained "the appointment of the three above named persons" — Basilia Salud." However. In support of this pretense. 1956. in lieu of Basilia Salud. of Victorina Salud. which must be protected by giving representation thereto in the management of said estate. inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys. taken place she has a special interest in said estate. she expressed her conformity to said resignation. she (petitioner) being the universal heiress to said estate and. which was granted on June 23. that. 1956.

without previous notice to the petitioner herein. that the Rules of Court do not permit the appointment of more than one special administrator. 1956. said petitioner had no opportunity to object to the appointment of Basilia Salud as special administratrix. and of Victorina Salud. for the following reasons: 1. 1956." . 1956. postponing said hearing to February 27. Victorina Salud. Said order was issued with evident knowledge of the physical disability of Basilia Salud. 1956. to this effect. and the latter's principal witness. Otherwise respondent Judge would not have directed that she "be assisted and advised by her niece Victorina Salud. As a consequence. 1956. 3." and that the latter "shall always act as aide. dated February 23. Petitioner had. no notice that her main opponent. respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any abuse of discretion. that petitioner can not validly claim any special interest in the estate of the deceased. Although Horacio Rodriguez had notice of the hearing of the motion for his removal. and the appointment of Ramon Plata. that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith. that said disability is borne out by the fact that on March 17. In her motion of February 17. interpreter and adviser of Basilia Salud. and the order of February 27. would be considered for the management of said. that Horacio Rodriguez was duly notified of the proceedings for his removal. or the date after that set for the hearing thereof. denied due process to said petitioner. she being over eighty (80) years of age and blind. was not served on petitioner herein. the record shows that petitioner herein received copy of said motion of February 24. 2. and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and the produce of her lands. Basilia Salud prayed for the dismissal of Horacio Rodriguez. as special administrator of said estate.special administratrix despite her obvious unfitness for said office. and that Victorina Salud and Ramon Plata have not done anything that would warrant their removal. we find ourselves unable to sanction fully the acts of respondent Judge. therefore. Upon a review of the record. notice of the order of respondent Judge. dated February 17. as well to sell her palay. because the probate of the alleged will and testament of the latter — upon which petitioner relies — has been denied. 1956. Basilia Salud resigned as special administratrix upon such ground. as her assistant and adviser. Again. Basilia Salud. Upon the other hand. 1956.

to the effect that "only one special administrator may be appointed to administrator temporarily" the estate of the deceased. to which Basilia Salud and Victorina Salud belong. Victorina Salud and Ramon Plata. 1956. represented by the petitioner. Inasmuch as the lower court had deemed it best to appoint more than one special administrator. Soon after the institution of said Special Proceedings No. removing Rodriguez and appointing Victorina Salud to the management of the estate. Judge." 5. Thus. The former proposed Horacio Rodriguez. and later. one.. 1952. the order of resident thereof. upon the ground that. In other words. whereas the latter urged the appointment of Victorina Salud. 6. Indeed. in the case of Roxas vs. who. respondent Judge maintained "the appointment of the three (3) above-named persons for the management of the estate of the late Gabina Raquel. Thus. the order to this effect is not. as yet. The record shows that there are. namely. .4. must be considered in the light of the facts obtaining in said case. because the decision is not yet final and may be reversed by the appellate court. and another. mayor of the City of Cavite. final and executory. at least two (2) factions among the heirs of the deceased. 5213. By an order dated August 11. The probate of said alleged will being still within realm of legal possibility. "has . justice and equity demands that both factions be represented in the management of the estate of the deceased. resides In the City of Manila. unlike the latter. Pecson (supra). in the order of March 10. decided the matter in favor of Horacio Rodriguez and against Victorina Salud. 1956. laid down in Roxas vs. 1952. The lower court appointed therein one special administrator for some properties forming part of . an issue arose between Aurea Matias and Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. In other words. It is pending review on appeal taken by Aurea Matias. Pecson* (46 Off. then presided over by Hon. respondent Judge. designated as executrix in the alleged will and testament of her deceased husband. The rule. is a resident thereof. the Court. in effect. appointed three (3) special administrators — Basilia Salud. the order of respondent Judge of February 27. the probate of which had denied in an order pending appeal. a practicing lawyer and a former public prosecutor. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge. the same beneficial interest after the decision of the court disapproving the will. Aurea Matias has — as the universal heir and executrix designated in said instrument — a special interest to protect during the pendency of said appeal. this Court held that a widow." 7. Gaz. Jose Bernabe. which is now pending appeal. amounted to a reversal of the aforementioned order of Judge Bernabe of August 11. 2058). . as a pharmacist and employee in the Santa Isabel Hospital. the former.

It is so ordered. Harrison vs. 52 A. 2d. there were two (2) separate and independent special administrators. Logdan. Clark. In short.said estate.L. 60 A. and Felix. In re Wilson's Estate. Wherefore. and a special administratrix for other properties thereof.. Padilla. after due notice to all parties concerned. Paras.J. In the case at bar there is only one (1) special administration.Y. The lower court should re-hear the matter of removal of Horacio Rodriguez and appointment of special administrators. J. Labrador. the orders complained of are hereby annulled and set aside. there are authorities in support of the power of courts to appoint several special coadministrators (Lewis vs. Bautista Angelo. 49. 750. Reyes... 61 N. Moreover.. for action in conformity with the views expressed herein. 514. with costs against respondents Victorina Salud and Ramon Plata. Bengzon. Montemayor. the Roxas case is not squarely in point. 87 A. Davenport vs. A.S. . Davenport. C. Thus. Reyes. concur. JJ. 379). the powers of which shall be exercised jointly by two special co-administrators.B.

vs. Catalino Ragasa. 6284. Pedro Barut and another. Its translation into Spanish appears at page 11. No.. 1908. opponents-appellees. ET AL. M.: This case is closely connected with the case of Faustino Cabacungan vs. Ilocos Sur. 1912 PEDRO BARUT. She also stated in said will that being unable to read or write. .R. FAUSTINO CABACUNGAN. This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November. J. the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix. 1907. wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit. petitioner-appellant.1 just decided by this court. in the pueblo of Sinait. leaving a last will and testament bearing date March 2. After disposing of her property the testatrix revoked all former wills by her made.Republic of the Philippines SUPREME COURT Manila EN BANC G. L-6285 February 15. M. By the terms of said will Pedro Barut received the larger part of decedent's property. Timotea Inoselda. Jimenez are alleged to have been witnesses to the execution thereof. The original will appears on page 3 of the record and is in the Ilocano dialect. MORELAND. A. Jimenez for appellant. deceased. and A. No. Severo Agayan. Ramon Querubin for appellees.

in the case at bar. In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. real or personal. The court seems . or by the testator's name written by some other person in his presence. . or caused it to be signed by some other person. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. . This is the important part of the section under the terms of which the court holds that the person who signs the name of the testator for him must also sign his own name The remainder of the section reads: The attestation shall state the fact that the testator signed the will. not the same handwriting as that constituting the name of the testatrix. . 6284 already referred to. nor charge or effect the same.The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds. except as provided in the preceding section. such fact indicating that the person who signed the name of the testatrix failed to sign his own. at his express direction. from its appearance. The will referred to as being a later will is the one involved in case No. and by his expenses direction. and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together. Proceeding for the probate of this later will were pending at the time. shall be valid to pass any estate. the will is accordingly invalid. and that. to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name. the name signed below that of the testatrix as the person who signed her name. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will. in view of the fact that. by inference at least. Section 618 of the Code of Civil Procedure reads as follows: No will. being. and that they attested and subscribed it in his presence and in the presence of each other. unless it be in writing and signed by the testator. among them that a later will had been executed by the deceased. . in the presence of three witnesses. We do not believe that this contention can be sustained.

it is none the less valid. is absolutely unnecessary under the law. The law requires only three witnesses to a will. and Guison vs. Rep. it is unimportant whether the person who writes the name of the testatrix signs his own or not. The main thing to be established in the execution of the will is the signature of the testator. There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. But as a matter of essential validity of the document. for the person who writes the name of the principal in the document to sign his own name also. and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. Concepcion (5 Phil. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must sign his own name also. That is all the statute requires. as it rejects and destroys a will which the statute expressly declares is valid. Not one of these cases is in point. not four. It may be wise as a practical matter that the one who signs the testator's name signs also his own. All of the above cases are precisely of this character.. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. Instead of writing her name he wrote his own upon the will.. That the will was not duly executed. 692). The plain wording of the statute shows that the requirement laid down by the trial court. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. If that signature is proved. There is no necessity whatever. Nor is such requirement found in any other branch of the law. Ex parte Arcenas (4 Phil. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. Held. It says: The testatrix was not able to sign it for her. Rep. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. but that it is not essential to the validity of the will. in the particular case. Rep.. with respect to the validity of the will. whether it be written by himself or by another at his request.From these provisions it is entirely clear that. To hold a will invalid for the lack of the signature of the person signing the name of the principal is. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. so that the testator's name nowhere appeared . so far as the validity of the instrument is concerned. it is unnecessary. a complete abrogation of the law of wills. 700). Every one of them was a case in which the person who signed the will for the testator wrote his own name to the will instead of writing that of the testator. if it did lay down. 551).

that is resolved in case No. Upon the facts.attached to the will as the one who executed it. it shall be signed in the following manner: "John Doe.. conditions and validity of wills executed in accordance with the provisions of the Code of Civil Procedure. 6284 of which we have already spoken. Separate Opinions TORRES. Richard Roe." or in this form: "By the testator. C. it being sufficient for the validity of the will that the said person so requested to sign the testator or testatrix write the name of either in his own handwriting.. by the testator. as we have before stated. or is unable for any reason." All this must be written by the witness signing at the request of the testator. written by the learned and distinguished Hon. Arellano. J. was presented by the fact that the person who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his own thereto. Justice Moreland. We there held that said later will not the will of the deceased. therefore. that. to sign the will himself. concur. Since this court began to decide cases with regard to the form. not being required by the said code. when the testator or testatrix is unable or does not know how to sign. JJ. writes in the name of the said testator or testatrix must also sign his own name thereto. Richard Roe. The decision in that case related only to that question. concurring: The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that. Now for the first time is affirmed in the majority opinion. the person who. The only question for decision in that case. in the presence and under the express direction of either of them. never has the specific point just above mentioned been brought into question. the will must be probated.. John Doe. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case. The case of Ex parte Arcenas contains the following paragraph: Where a testator does not know.J. The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law. As to the defense of a subsequent will. the signature of the name of . Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. Mapa and Carson.

Paragraph 1 of the syllabus of case No. such other person should affix the name of the testator thereto. Various and considerable in number have been the decisions rendered by this court in which. 1905. No. inability to sign. Ex parte Delfin Santiago. No. as they have ceased to hold such position. states: 1.1 concerning the probate of a will. 1708. put the sign of the cross between his said name and surname. Among these decisions several were written by various justices of this court.) The following syllabus precedes decision No. 2002. 1905. Wills. and she requested another person to sign it for her. 3907: 4 Execution of wills. is not necessary.. 2002.the person who. — Where it appears in a will that the testator has stated that by reason of his inability to sign his name he requested one of the three witnesses present to do so. 1708. Tomas Guison vs. stating that the instrument executed by him contained his last will.2 in the matter of the probate of a will. consequently where a testator is unable to sign his name. as will be seen further on. some of whom are no longer on this bench. Ex parte Arcenas. August 24. 2586. expressly prescribed the practical method of complying with the provisions of the law on the subject. — The testatrix was not able to sign her name to the will. No. authentication of . Civil Code. (Following Ex parte Arcenas et al. August 18. the said witness wrote the name and surname of the testator who. — Article 695 of the Civil Procedure. and that as a matter of fact. at the request of the testator or testatrix.3 the following statements appear: Wills.. and then sign his own name in full. all of which details are set forth in a note which the witnesses . 1905. reads as follows: Wills. Held. requisites of. signature by another. Maria Concepcion. That the will was not duly executed. writes the name of either of the latter to the will executed. Paragraph 2 of the syllabus of case No. article repealed. In the syllabus of decision No. Ex parte Arcenas et al. the person signing at his request must write at the bottom of the will the full name of the testator in the latter's presence. and it is not sufficient that he sign his own name for and instead of the name of the testator. Ex parte Santiago. August 24. upon applying the said section 618 of Code of Civil Procedure and requiring its observance in cases where the testator or testatrix is unable or does not know how to sign his or her name. 1708. — Where a will is not signed by a testator but by some other person in his presence and by his direction. and by his express direction.

. the following appears: In sustaining this form of signature. 4454. said will may be probated. omitted to state the words 'by request of . 700. Moreover among the grounds given as a basis for this same decision. the following appears: The testatrix was unable to sign her will with her own hand and requested another person to sign for her in her presence. this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. In the syllabus of decision No. in the matter of the will of Maria Siason:5 The recital of the name of the testator as written below the will at his request serves as a signature by a third person.. the fact that the witness who was requested to sign the name of the testator. the testator.' when writing with his own hand the name and surname of the said testator. When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have been complied with. The following statement appears in the syllabus of case No.forthwith subscribed in the presence of the testator and of each other. This the latter did. because a specific determination either way is unnecessary. 692).... first writing the name of the testatrix and signing his own name below: Held.6 Ex parte Ondevilla et al. but did not mean to exclude any other for substantially equivalent. Ex parte Arcenas. Among the conclusions contained in this last decision the following is found: Although the said words "For Simplicia de los Santos" be considered as inserted subsequently. which we neither affirm nor deny.) The syllabus of decision No. (Ex parte Arcenas... 4132. Zalamero. 4 Phil. above quoted.. and the fact that said witness subscribed his name together with the other witnesses and not below the name of the testator. of another name before that of the testator when such name may be treated as nonexistent without affecting its validity. Rep. does not constitute a defect nor invalidate the said will. 51497 sets forth that: The legality of a will is not affected by the insertion.... supposed to have been made subsequently. Rep. That the signature of the testatrix so affixed is sufficient and a will thus executed is admissible to probate. In the Arcenas case the court pointed out the correct formula for a signature which ought to be followed. or in Abaya vs.. in our opinion the signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if she signed .

In the preceding decision itself. in the examination and qualification of a will for the purpose of its probate. on the contrary. and also the signature of the witness who. It is true that in none of the decisions above quoted was the rule established that the person who. in inserting this last above-mentioned detail in the aforesaid decisions. yet. relative to the form of execution of testaments. in prescribing the method in which the provisions of the said section 618 to be complied with. and should afterwards sign the instrument with his own name and surname. though convinced of the complete repeal of article 695 of the Civil Code and.the will. the sole law applicable in the matter. he believed it to be a vary natural and common sense requisite that the signature. It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to the will the name of the testator or testatrix who is not able to sign. in order that a will so executed might be admitted to probate. at the request of the testator or testatrix. at her request. of the person requested to write in the will . as the case might be. nor may such a detail be understood to be contrary or opposed to the plain provisions thereof. while he conceded that. The undersigned feels it his duty to admit that. And this fully complies with the provisions of section 618 of the Act. perhaps imbued with the strongly impelled by a traditional conception of the laws which he has known since youth. in behalf of the inhabitants of this country and for sake of an upright administration of justice. no act prohibited by law was recommended or suggested. This statement induces us to believe that. but it no less true that. it was deemed to be a complement and integral part of the required conditions for the fulfillment of the provisions of the law. wrote the name of the testatrix and signed for her. it is recognized to be convenient and even prudent to require that the person requested to write the name of the testator or testatrix in the will also sign the instrument with his own name and surname. it was an indispensable requisite that the person requested to sign in place of the testator or testatrix. attested by the other witnesses then present. it would serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause of controversy between the interested parties. signed the latter's or the former's name and surname to the will must affix his own signature. The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will should likewise affix his own signature thereto. it should be maintained that such a signature must appear in the will. yet it is unquestionable that. affirming the truth of this fact. with his own name and surname. name and surname. one has but to abide by the provisions of said section 618 of the Code of Civil Procedure. it was stated that. though it be considered to be neither a rule nor a requisite necessary to follow for the admission of the will to probate. should write the latter's or the former's name and surname at the foot of the will in the presence and under the direction of either. since no harm could accrue to anyone thereby and. but by stating in the decisions hereinabove quoted that the name and surname of the said person should be affixed by him.

that such a requisite of the signature of the person before referred to — a requisite deemed to be convenient and prudent in the majority opinion — formed a part of the provisions of the law. With regard to the execution of wills in accordance with the provisions of previous statutes. or is not able to sign. The aforementioned different decisions were drawn up in the form in which they appear. though it is true that all these formalities were performed before the judge and the clerk or secretary of the court. did not need to designate anyone to write the deponent's name and surname. the notary certifying thereto. in which event any person at all might write the name and surname of the witness who was unable or did not know how to sign. since the latter contains nothing that prohibits it. this done. where a cross was then drawn. He undoubtedly thought. but in the matter of the signature of a deposition. The difference is that in the will. at the foot of his deposition. besides writing in the will the name and surname of the testator or testatrix. the person who writes the name and surname of the testator or testatrix does so by the order and express direction of the one or of the other. pursuant to section 618 of the Code of Civil Procedure. and signed without dissent by all the justices of the court on various dates. and this fact must be recorded in the will. This shall be done if any one of the witnesses can not sign. notwithstanding that it was expressly held therein that the person above mentioned should. the person or witness requested by the testator or testatrix who was not able or did not know how to sign.the name and surname of the testator or testatrix should form a part of the provisions of the aforementioned section 618. Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will not be superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws that governed in these Islands. authenticated the will by signing it with his own name and surname. who could not or did not know how to sign. with respect to witnesses who were not able or did not know how to sign their testimony given in criminal or civil cases." Paragraph 2 of article 695 of the Civil Code contains the following provisions bearing on the subject: Should the testator declare that he does not know how. also sign the said instrument with his own name and surname. which thereupon certified that such procedure was had in accordance with the law. one of the attesting witnesses or another person shall do so for him at his request. preceded by the words "at the request of the testator or testatrix. the witness. it was considered that the instrument had been signed by the witness. among them those of the Civil Code. written by whomever it be. perhaps mistakenly. and in practice the witness merely made a cross beside his name and surname. . and. None of them hesitated to sign the decisions.

but a matter of the observance of a convenient. to public order. the undersigned is of opinion that it ought not to be modified or amended. because it is not a question of a dangerous innovation or of one prejudicial to the public good. in accordance with the law." his own name. constitutes another guarantee of the truth and authenticity of the letters with which the name and surname of the testator of testatrix are written. is in consonance with a tradition of this country. are conducive to the realization of the purposes of justice. . wrote the latter's or the former's name and surname. are traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance therewith as regards the execution and signing of a will. and since this suggestion is not opposed or contrary to the law. on the contrary. and reversal of the judgment appealed from. It is not at all strange that the attorneys of this country. which perhaps have not the support of better premises. Maria Salomon. which it may said. yet. it should be maintained as a requisite established by the jurisprudence of this court. since it is in harmony with the juridical usages and customs observed in this country. imbued with and inspired by these legal provisions. but in the opinion of the undersigned. does not prejudice the testator nor those interested in an inheritance. or to good custom. if not a necessary detail. introduced by the jurisprudence of the courts and which in the present case has filed a vacancy left by the positive written law. after the name and surname of the testator or testatrix had been written at the foot of the will. The foregoing considerations. but that. and. surname and paragraph.So that. merely affixed at the bottom of the will and after the words "at the request of the testator. should also sign the will with his own name and surname. to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good administration of justice. inasmuch as such a requisite is not contrary to law. that the court below should be ordered to proceed with the probate of the will of the decedent. should have believed that. and therefore. should also subscribed the instrument by signing thereto his own name and surname. prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with respect to the signing of a will by a testator or testatrix who did not know how or who could not sign. in accordance with his or her desire as expressed in the will. Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine whatever. such fact being recorded in the will. If in various decisions it has been indicated that the person who. under the express direction of the testator or testatrix. have impelled him to believe that the proposition should be enforced that the witness requested or invited by the testator or testatrix to write his or her name to the will. consisted in that the person appointed and requested by the testator or testatrix to sign in his or her stead. in the humble opinion of the writer. it ought. on the contrary. the person who signed the instrument in the manner mentioned should likewise sign the same with his own name and surname. with the proper finding in this sense.

some eight or ten feet away. A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when . Anacleto Diaz for appellees.Republic of the Philippines SUPREME COURT Manila EN BANC G. or whether at that time he was outside. Valerio Fontanilla and Andres Asprer for appellant.. in a large room connecting with the smaller room by a doorway. ET AL. CARSON. NARCISA RIMANDO. J. vs. plaintiffs-appellees. 1911 BEATRIZ NERA. L-5971 February 27. No. across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.: The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below. is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures.R. defendant-appellant.

had they chosen to do so. considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. as he was of opinion that under the doctrine laid down in the case of Jaboneta vs.they attached their signatures to the instrument. had it been proven. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature. of course. of course. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature. on which the trial court relied. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room. would not be sufficient in itself to invalidate the execution of the will. but whether they might have been seen each other sign. 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room. disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased. Gustilo (5 Phil. we held that: The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign. must be such that they may see each other sign if they choose to do so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its . This.. The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case. without changing their relative positions or existing conditions. and this finding. Rep. the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." In the case just cited. it would have been invalid as a will. does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment.

as Judge of Court of First Instance of Southern Leyte. Maasin). C. J. ROSAL. (Branch III. but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. . vs. 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ. Hon. deceased. Erasmo M. (deceased): APOLONIO TABOADA. AVELINO S. concur. L-36033 November 5. Arellano. Moreland and Trent. and the like. Mapa. is affirmed with costs of this instance against the appellant. The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando... Avelino S. JJ. respondent.R. HON. To extend the doctrine further would open the door to the possibility of all manner of fraud. petitioner. Diola counsel for petition. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. Rosal in his own behalf.subscription by each of them. No. substitution. and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

Since no opposition was filed after the petitioner's compliance with the requirement of publication. Branch III. who testified on its genuineness and due execution. Apolonio Taboada. J. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. Accordingly. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order. .: This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte. the petitioner filed a manifestation and/or motion. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rizal. the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate. He also asked that the tenday period required by the court to submit the names of intestate heirs with their addresses be held in abeyance. the trial court commissioned the branch clerk of court to receive the petitioner's evidence. In the petition for probate filed with the respondent court. entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez. Pamatian due to his transfer to his new station at Pasig. one of the subscribing witnesses to the will. Deceased. the petitioner attached the alleged last will and testament of the late Dorotea Perez. the motion for reconsideration and the motion for appointment of a special administrator. R-1713. the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix. Written in the CebuanoVisayan dialect. Instead of complying with the order of the trial court. The trial court. which denied the probate of the will.GUTIERREZ. However. thru then Presiding Judge Ramon C. The petitioner filed a motion for reconsideration of the order denying the probate of the will. Rosal assumed the position of presiding judge of the respondent court. the will consists of two pages. JR. ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. the petitioner submitted his evidence and presented Vicente Timkang. Petitioner". in Special Proceedings No.

and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another. and the fact that the testator signed the will and every page thereof. each and every page thereof. and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. in the presence of the testatrix and of one another because the attesting witnesses to a will . it shall be interpreted to the witnesses. the petitioner filed a motion for the appointment of special administrator.Meanwhile. shall also sign. under his express direction. Subsequently. For the validity of a formal notarial will. The testator or the person requested by him to write his name and the instrumental witnesses of the will. on the left margin. as aforesaid. for a notarial will to be valid. If the attestation clause is in a language not known to the witnesses. the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses. the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. and by his express direction. The petitioner decided to file the present petition. does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Article 805 of the Civil Code provides: Every will. must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence. The attestation shall state the number of pages used upon which the will is written. it shall be interpreted to them. in the presence of the instrumental witnesses. except the last. it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end. The respondent Judge interprets the above-quoted provision of law to require that. In the same order of denial. or caused some other person to write his name. other than a holographic will. and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are. and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. 444. it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification. under Article 805 of the Civil Code. It is not sufficient compliance to sign the page. Insofar as the requirement of subscription is concerned. especially where the authenticity of the will is not assailed. (Gonzales v. Undoubtedly. unsubstantial departure from the usual forms should be ignored. and by his express direction. 90 Phil. done which the statute requires for the execution of a will and that the signature of the testator exists as a fact.attest not merely the will itself but also the signature of the testator. where the end of the will is found. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. at the left hand margin of that page. On the other hand. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. 269 SW 2d 911). While perfection in the drafting of a will may be desirable. . the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. Hill. Gonzales. 449). (Ragsdale v. On the other hand. the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence. subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. We find the petition meritorious.

p. which requires that the attestation clause shall state the number of pages or sheets upon which the win is written. the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. 405. 103). The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions. 2645. it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. 164). This would have been a fatal defect were it not for the fact that. As earlier stated. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses. which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada. Gorecho. 180.The law is to be liberally construed. Parenthetically. 42 Phil. 50 Phil.. Florentino. Morata. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. There was no question of fraud or substitution behind the questioned order. "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. Uy Coque vs. as amended by Act No. Gumban vs. this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used: The law referred to is article 618 of the Code of Civil Procedure. he would have found the testimony sufficient to establish the validity of the will. Navas L. 43 Phil. Judge Ramon C. Quinto vs. In Singson v. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page". in this case. 30. (92 Phil. Sioca. especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission. . et al. 161.

429) has the following ruling which applies a similar liberal approach: . SO ORDERED. Murciano. at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause. But here the situation is different. the present petition is hereby granted. Echevarria vs.. not by evidence aliunde. 481. but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. Otherwise. as stated in Vda. and the evidence on record attests to the fun observance of the statutory requisites. the last part of the body of the will contains a statement that it is composed of eight pages. Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page.. Vs. de Gil. however. 611). The orders of the respondent court which denied the probate of tile will. 1459. No pronouncement on costs. but by a consideration or examination of the will itself.54 Phil. which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations. Icasiano (11 SCRA 422. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained. 66 Phil. no intentional or deliberate deviation existed. . The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. and the motion for appointment of a special administrator are set aside. it will have the effect of invalidating the will if the deficiency cannot be supplied. The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted. the motion for reconsideration of the denial of probate. Icasiano v. Sarmiento. Gaz. While the attestation clause does not state the number of sheets or pages upon which the will is written. WHEREFORE. 49 Off.