PETITION FOR PROBATE NOTES AND JURISPRUDENCE

A petition for the allowance or probate of a will must show, so far as

known to the petitioner, the following: (1) the fact of death of the testator,
indicating the time and place of such death; (2) the fact that the deceased
left a will, attaching a copy of the said will; (3) the fact that the will was
executed according to law; (4) whether the person named as executor
consents to act as such, or renounces his right to become an executor; (5)
the names, ages, and residences of the heirs, legatees, and devisees of
the decedent; (6) the probable value and character of the property of the
estate; (7) the name of the person whose appointment as executor is
prayed for; and (8) if the will has not been delivered to the court, the name
of the person having custody thereof.1

Proof at Hearing – The following must be proved at the hearing of the

probate of the will: (1) the fact of death of the testator, in case of probate
after death, (2) the publication of notice of hearing, (3) the execution of the
will with the formalities required by law.2

The rule requiring the production and examination of the attesting

witnesses in the probate of a contested will is not absolute. There are
exceptions to this rule; such, for instance, as when a witness is dead, or
cannot be served with process of the court, or his reputation for truth has
been questioned, or he appears to be hostile to the cause of the proponent.
In such case, the will may be admitted to probate without the testimony of
the said witnesses, if, upon the other proofs adduced in the case, the court
is satisfied that the will has been executed. Where no exceptional
circumstance appears, however, all the three attesting witnesses must be
produced and examined in the probate of the contested will. If the will is
admitted by the lower court, without all the available attesting witnesses
having testified to its due execution, nor a showing be made that those who
have not testified are absent or cannot be produced, the order will be
reversed and the record remanded for the holding of a new trial in order
that the evidence may be completed by the taking of the testimony of the
remaining witness or witnesses.3

It is necessary, however, that the question of the number of witnesses

necessary to the probate of a contested will be raised in the lower court by
the opponent. The failure of the opponent to raise the question in the lower
court will be taken as a waiver of the requirement. 4 [Full text below]

1
Rule 76, Section 2, Id., Salazar v. Court of First Instance, 64 Phil 785.
2
A.M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, p. 152 (1996).
3
Limpin v. Yalung, 47 Phil. 944.
4
Avera v. Garcia, 42 Phil. 145, 148.
CASES

1. Limpin v. Yalung, 47 Phil 944

[http://www.chanrobles.com/scdecisions/jurisprudence1923/jan1923/gr_l-
19077_1923.php]

Doctrine: It is therefore an established rule that when the probate if a

will is contested, all the attesting witnesses must be produced and
examined, and if only two witnesses testify in the probate of a contested
will, the proceeding shall be remanded to the trial court for the testimony of
the third witness, if available.5

2. Avera v. Garcia; G.R. No. 15566, September 14, 1921

G.R. No. 15566           September 14, 1921

EUTIQUIA AVERA, petitioner-appellee, 
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors
Cesar Garcia and Jose Garcia,objectors-appellants.

Dionisio Villanueva for appellants. 

Marcelino Lontok for appellee.

STREET, J.:

In proceedings in the court below, instituted by Eutiquia Avera for probate

of the will of one Esteban Garcia, contest was made by Marino Garcia and
Juan Rodriguez, the latter in the capacity of guardian for the minors Jose
Garcia and Cesar Garcia. Upon the date appointed for the hearing, the
proponent of the will introduced one of the three attesting witnesses who
testified — with details not necessary to be here specified — that the will
was executed with all necessary external formalities, and that the testator
was at the time in full possession of disposing faculties. Upon the latter
point the witness was corroborated by the person who wrote the will at the
request of the testator. Two of the attesting witnesses were not introduced,
nor was their absence accounted for by the proponent of the will.

When the proponent rested the attorney for the opposition introduced a
single witness whose testimony tended to show in a vague and indecisive
manner that at the time the will was made the testator was so debilitated as
to be unable to comprehend what he was about.

After the cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making of
the will was of sound mind and disposing memory and that the will had
been properly executed. He accordingly admitted the will to probate.
5
Limpin v. Yalung, 47 Phil 944.
From this judgment an appeal was taken in behalf of the persons
contesting the will, and the only errors here assigned have reference to the
two following points, namely, first, whether a will can be admitted to
probate, where opposition is made, upon the proof of a single attesting
witness, without producing or accounting for the absence of the other two;
and, secondly, whether the will in question is rendered invalid by reason of
the fact that the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of the will instead of
the left margin.

Upon the first point, while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses
must be examined, if alive and within reach of the process of the court.

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

Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule
expounded in the case above referred to; and were it not for a fact now to
be mentioned, this court would probably be compelled to reverse this case
on the ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.

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

There are at least two reason why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second
instance. In the first place it eliminates the judicial criterion of the Court of
First Instance upon the point there presented and makes the appellate
court in effect a court of first instance with reference to that point, unless
the case is remanded for a new trial. In the second place, it permits, if it
does not encourage, attorneys to trifle with the administration of justice by
concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions
more simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood

as laying down any hard and fast rule that would prove an embarrassment
to this court in the administration of justice in the future. In one way or
another we are constantly here considering aspects of cases and applying
doctrines which have escaped the attention of all persons concerned in the
litigation below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it. What we
mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented
in that court, we will in the exercise of a sound discretion ignore such
question relates a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the
appellant had raised this question in the lower court, either at the hearing or
upon a motion for a new trial, that court would have had the power, and it
would have been is duty, considering the tardy institution of the contest, to
have granted a new trial in order that all the witnesses to the will might be
brought into court. But instead of thus calling the error to the attention of
the court and his adversary, the point is first raised by the appellant in this
court. We hold that this is too late.

Properly understood, the case of Cabang vs.Delfinado, supra, contains

nothing inconsistent with the ruling we now make, for it appears from the
opinion in that case that the proponent of the will had obtained an order for
a republication and new trial for the avowed purpose of presenting the two
additional attesting witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to take their
testimony. Both parties in that case were therefore fully apprised that the
question of the number of witnesses necessary to prove the will was in
issue in the lower court.

The second point involved in this case is whether, under section 618 of the
Code of Civil Procedure, as amended by Act No. 2645, it is essential to the
validity of a will in this jurisdiction that the names of the testator and the
instrumental witnesses should be written on the left margin of each page,
as required in said Act, and not upon the right margin, as in the will now
before us; and upon this we are of the opinion that the will in question is
valid. It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every page;
and it is undeniable that the general doctrine is to the effect that all
statutory requirements as to the execution of wills must be fully complied
with. The same doctrine is also deducible from cases heretofore decided by
this court.

Still some details at times creep into legislative enactments which are so
trivial it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect that
the signatures of the testator and witnesses shall be written on the left
margin of each page — rather than on the right margin — seems to be this
character. So far as concerns the authentication of the will, and of every
part thereof, it can make no possible difference whether the names appear
on the left or no the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not
reported), this court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in the case of
Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void
which contained the necessary signatures on the margin of each leaf
( folio), but not in the margin of each page containing written matter.

The instrument now before us contains the necessary signatures on every

page, and the only point of deviation from the requirement of the statute is
that these signatures appear in the right margin instead of the left. By the
mode of signing adopted every page and provision of the will is
authenticated and guarded from possible alteration in exactly the same
degree that it would have been protected by being signed in the left margin;
and the resources of casuistry could be exhausted without discovering the
slightest difference between the consequences of affixing the signatures in
one margin or the other.

The same could not be said of a case like that of Estate of

Saguinsin, supra, where only the leaves, or alternate pages, were signed
and not each written page; for as observed in that case by our late
lamented Chief Justice, it was possible that in the will as there originally
executed by the testratrix only the alternative pages had been used,
leaving blanks on the reverse sides, which conceivably might have been
filled in subsequently.

The controlling considerations on the point now before us were well

stated In Re will of Abangan (40 Phil., 476, 479), where the court, speaking
through Mr. Justice Avanceña, in a case where the signatures were placed
at the bottom of the page and not in the margin, said:

The object of the solemnities surrounding the execution of wills is to

close the door against bad faith and fraud, to avoid substitution o will
and testaments and to guarantee their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when
 an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.

In the case before us, where ingenuity could not suggest any possible
prejudice to any person, as attendant upon the actual deviation from the
letter of the law, such deviation must be considered too trivial to invalidate
the instrument.

It results that the legal errors assigned are not sustainable, and the
judgment appealed from will be affirmed. It is so ordered, with costs against
the appellants.

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

3. Cabang v. Delfinado; G.R. No. L-8954

G.R. No. L-8954            March 21, 1916

DOROTEA CABANG, petitioner-appellees,
vs.
MARTIN DELFINADO, respondent-appellant.

M. Legazpi Florendo for appellant.

Leon W. Denison, for appellee.

TRENT, J.:

This is an appeal from a judgment of the Court of First Instance of the

Province of Pangasinan, probating a document purporting to be the last will
and testament of the deceased Celestino Delfinado.

The petition setting forth the necessary facts was filed on the 15th of
September, 1911. On the 25th of October of that year Martin Delfinado
appeared, through his attorney, and filed an opposition to the allowance of
the will, alleging that the will was not signed by the deceased, nor by any
other person, in his presence and by his express direction, and that the
attestation does not comply with law. After publication, the case was set for
hearing at 8 a. m. on November 18, 1911. On the last named date the case
proceeded to trial, the petitioner presenting as witnesses the widow
Dorotea Cabang, Antonio Flor Mata, and Paciano Romero, the latter being
one of the subscribing witnesses. The opposition called only one witness,
Martin Delfinado. On the 27th of November, 1911, the petitioner presented
a motion asking that the case be reopened for the purpose of receiving the
testimony of the other two subscribing witnesses, who were then living in
Manila and Nueva Ecija. Opposition to this motion was filed on December
1, 1911. On the 13th of May, 1912, the petitioner filed another motion,
setting forth that due publication for the legalization of the will had not been
made. As a result of this last motion, the court, by an order dated the 29th
of December, 1912, directed a republication, setting the date for the
hearing on the 7th of January, 1913, and the judgment appealed from was
entered on the 25th of that month. The record fails to show a single act on
the part of anyone which took place on the date of the last hearing. The
decision of the court is based exclusively upon the testimony taken on the
18th of November, 1911. The petitioner had from the 29th of November,
1912, the date of the order directing a republication and new hearing, until
January 7, 1913, the date fixed for the new hearing, within which to present
the two absent subscribing witnesses. No reason whatever appears in the
record why these witnesses were not present and no question was raised
either in the court below or in this court with reference to the consideration
by the trial court to the testimony taken upon the first hearing. So it must be
presumed that the petitioner did not desire to present these two witnesses
and that she had no objection to the consideration of the testimony already
taken.

We will now set forth briefly all the material testimony presented in this
case.

Dorotea Cabang, widow of the testator, testified that her deceased

husband, Celestino Delfinado, could neither read nor write. The other
witnesses testified in substance as follows:

Antonio Flor Mata, justice of the peace of Tayug:

The deceased Celestino Delfinado requested me to write a will for

him. I complied with his request by dictating the will to a clerk, who
wrote it out. The will was then copied on a typewriter from the draft
which I dictated, and then read to the testator and interpreted to him
in his own dialect. When thus interpreted, the testator stated that it
was the same he had dictated to me. Then the typewritten will was
presented to him for signature, and he stated that he could not sign it
because he did not know how to read or write. He then requested
Patricio de Guzman to write his name. De Guzman complied with this
request and the testator then put his cross on the will in the presence
of the witnesses. All three of the witnesses were present when the
testator signed the will and were also present when each of them
signed it as a witness. I have known the testator since 1890. I have
never heard him read or seen him write. If he could have done either,
I certainly would have known it because I was municipal secretary of
the town and the electors had to take the oath before me. The
testator, in taking the oath, never signed his name, stating that he
could not do so. He always made his mark. The testator dictated the
will to me word by word and I translated it into Spanish to the best of
my knowledge and ability. The testator made the cross with his own
hand. The fact that he requested one of those present to write his
 name to the will does appear in the will, but the name of the person
requested is not given herein. I know from hearsay and from the
testator's own statement that he was a councilman at one time during
the Spanish regime. Yes, I was present and saw all three of the
witnesses sign the will. I also saw the testator sign the will with his
cross. All three of the witnesses were present when the testator thus
signed, and the witnesses signed in the presence of each other. The
clerk wrote the testator's name in his presence and in the presence of
the three witnesses. There was no undue influence brought to bear
upon the testator. He dictated and signed the will voluntarily. I know
all three of the witnesses and each is of age. This Exhibit A is the will
which was executed in the manner above stated. The testator was in
his right mind at the time he executed his will.

Paciano Romero, 27 years of age, clerk by profession:

I have seen this will before. I know the names signed there. One of
them is my own. I know why the names of the three subscribing
witnesses and the name of the testator appear on the will. A person
came to call me at the instance of the testator. I went to his house.
Upon arrival I found the other parties there and the testator asked me
to write his will. Mr. Antonio Flor Mata dictated to me in Spanish what
the testator told him in Ilocano. After the draft was written and copied
on the typewriter, it was again interpreted to the testator by Mata, and
after such interpretation, which took place in the presence of
witnesses, the testator stated that he could not read or write and
requested a certain person to sign his name to the will. That person
wrote the testator's name, after which the testator put his cross there
and I then signed the will with the two other witnesses. All of this was
in the presence of all of us. The testator executed his will and was in
his right mind at the time. Patricio de Guzman is the person who
wrote the testator's name on the will. The other two subscribing
witnesses are living, one in Manila and the other in Nueva Ecija. Yes,
sir, I heard the testator request Patricio de Guzman to sign his name
to the will and this was done in the presence of the testator and in the
presence of the other witnesses.

Martin Delfinado, a contestant:

I am a son by the first marriage of the testator. I do not know whether

my father made a will or not. This is the first time I have ever seen
Exhibit A. My father could read, write, and sign his name. I know his
signature.

The following agreement appears in the record:

At this juncture, it was admitted by the counsel for both sides that the
document, which is marked 'Contestant's Exhibit No. 1,' and which is
 now offered in evidence, was signed by the deceased Celestino
Delfinado.

Exhibit No. 1 was admitted without objection. The last clause in the will
reads:

In testimony whereof I place a cross between my name and surname

as I am unable to sign. Tayug, this 31st day of August, 1909.

CELESTINO (X) DELFINADO.

Signed in the presence of:

A. ABAYA,
PABLO DEL ROSARIO,
PACIANO ROMERO

The principal question raised by this appeal is whether the court erred in
admitting the will to probate without having two of the subscribing
witnesses called, although they were living within the jurisdiction of the
court, or for not requiring any showing why they were not produced.

The Code of Civil Procedure provides that no will shall be valid to pass any
estate, real or personal, unless it be in writing and signed by the testator or
by the testator's name and attested and subscribed by three or more
credible witnesses (sec. 618). Any person of sound mind and of the age of
eighteen or more, and not blind, deaf, or dumb, and able to read and write,
may be a witness to the execution of a will (sec. 620). If the witnesses
attesting the will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance of the will (sec.
621). If a will be attested by only three witnesses, to one of whom or to
whose wife or husband, or parent, or child, a beneficial devise, legacy, or
interest is given by such will, the devise or legacy is void (sec. 622). If no
person appears to contest the allowance of a will at the times appointed,
the court may grant allowance thereof on the testimony of one of the
subscribing witnesses only (sec. 631). The will may be allowed,
notwithstanding the fact that one or more of the subscribing witnesses do
not remember the fact of having attested it, provided the court is satisfied
that the will was duly executed and attested (sec. 632). If none of the
subscribing witnesses reside in the Philippine Islands at the time of the
death of the testator, the court may admit the testimony of other witnesses
to prove the sanity of the testator and the due execution of the will,
although the subscribing witnesses are living. In case one or more of the
subscribing witnesses has deceased, the sanity of the testator and the due
execution of the will may also be proven in the manner herein provided
(sec. 633).

It will be seen by comparison that the provisions above mentioned have

been taken substantially from similar provisions in the law of the State of
Vermont. The requisites set out in section 618 are the same as those in
section 2349 of the Vermont Statutes of 1894. The same provision as that
made in section 621 for subsequent incompetency of the subscribing
witnesses occurs in section 2352 of the same compilation of the Laws of
Vermont. Section 622, making a legacy to a subscribing witness void is
almost word for word the same as section 2353 of the Vermont Statutes.
There is not practical difference between section 631, providing proof by
one witness in non-contested cases, and section 2362 of the Vermont
Statutes. Section 633 differs only in adding death to the common provision
in section 2363 of the Vermont Statutes excusing the calling of attesting
witnesses and admitting proof of their handwriting, if none live within the
jurisdiction of the court.

Our code provides, as we have indicated, that non-contested may be

admitted to probate upon the testimony of one of the subscribing
witnesses, but is silent as to the manner in which they shall be proved
when contested. Provisions are also made for supplying the testimony of
the three subscribing witnesses when they cannot be called. The provisions
of the Vermont Statutes are essentially the same. We therefore, call to our
aid the decisions of the supreme court of that State and the law upon which
those decisions rest in determining the intention of the Philippine
Legislature in enacting the provisions of Act No. 190, above referred to.

The ancient common law rule concerning the proof of instruments having
attesting witnesses was that the instrument must be proved by those
witnesses. Later common law courts changed the rule so that one attesting
witness was sufficient to prove the proper execution of the instrument. This
applied to wills only as they were used in evidence in a suit other than the
probate of the will. The chancery courts uniformly maintained the rule that
all the subscribing witnesses required by the law for the valid execution of a
will, must be called and examined on probate or a showing made that they
were not required under the exceptions allowed. The exceptions were that
the witnesses were dead, beyond the jurisdiction of the court or insane.
(Wigmore on Evidence, vol. 2, secs. 1287 to 1319.)

This rule of the chancery courts has been adopted ad the common law in
several of the States. In Alabama in 1839 there was no statute in reference
to the proof of wills. The court adopted in that year the chancery rule and in
the opinion deciding Bowling vs. Bowling (8 Ala., 538) is shown the
derivation of the rule.

In England, the statute of 29 Charles II, is substantially the same as

ours, and there it has always been held, that one witness who could
swear to the execution of the will by the testator, and that he
subscribed the will, and also proved its attestation by the other
subscribing witnesses, is sufficient proof of the due execution of the
will, in a court of common law. (Longford vs. Eyre, 1 P. Will., 741; see
the authorities collected in 3 C. & H. of Phil. on Ev., 1349.) The same
rule obtains in chancery, where the direct object of the bill, is not to
 establish the will, but it is offered as an instrument of evidence.
(Concannon vs. Cruise, 2 Molloy, 332.) When however the bill is filed
for probate of the will, or when an issue is directed out of chancery, to
ascertain whether the will was duly executed, all the witnesses, if
alive and within the jurisdiction of the court, must be produced, or
their absence accounted for. If the witness is dead, out of the
kingdom, insane, or has become incompetent to testify, his
handwriting may be proved. (See Powell vs. Cleaver, 2 Bro. C. C.,
504; Carrington vs. Payne, 5 Vessey, 411; Burnett vs. Taylor, 9 Id.,
381.)

Some States did not adopt this rule. In some of these States proof by all
the attesting witnesses is required by legislative provision. New York,
Illinois, and California have such statutes. These are exceptional. The great
body of States have not passed any direct Act requiring wills to be proved b
the subscribing witnesses. The provisions generally provide when the
proponent is excused from calling the attesting witnesses. Usually they are
the same as the excuses allowed by the common law as stated in Bowling
vs. Bowling, supra. Vermont, whose legislation is typical in this regard and
closely resembles our own, as has been shown, applies the same rule, for
the same reasons as does Alabama without the such legislation. (Thornton
vs. Thornton, 39 Vt., 122.) In that case the court says:

Our statute requires wills to be attested by three witnesses, but is

silent as to the manner in which they shall be proved when contested.
When not contested the statute provides, that they may in the
discretion of the judge be admitted to probate upon the testimony of
one of the subscribing witnesses. (G. S. p. 379, sec. 18.) This
provision would indicate that more were to be required in other cases.
In an English common law court, when, as in an action of ejectment,
the issue was made upon the validity of a will, the devisee was
obliged to call but one of the attesting witnesses, if that one testified
to a sufficient execution. (1 Phil. Ev. [Cowen & Hill's Ed.], 496, 501;
Ansty vs. Dowsing, 2 Str., 1254; Jackson ex dem. Le Grange vs. Le
Grange, 19 Johns, 386.) In the ecclesiastical courts, it was necessary
that all should be produced by the devisee, if in his power; but he was
not required to examine all himself. (The Lochlibo, 1 Eng. Law & Eq.
645.7.)

It is urged that one or the other of these rules should prevail here.
But, it is to be remembered, that at common law a will is proved
merely for the purpose of the case on trial, and may be again put in
issue; and in the ecclesiastical courts it was proved with reference to
the distribution of none but personal estate. (2 Bouvier's Bac. Ab.,
730.) The only method by which until recently a will, when it related to
real as well as personal estate, could be established in England, was
by a bill in chancery; and in such cases, says Lord Camden (Hindson
vs. Kersey, 4 Burn. Ecc. Law, 91) it was the "invariable practice" to
require the three witnesses to be examined. . . . We think, if our
 statute requires any aid for its interpretation from the English practice,
in determining how many subscribing witnesses should be called to
prove a will, we should look to that English court in which alone wills
were, as in our probate court, established; and to the rule of that court
in establishing wills, instead of regarding the rule at law or in the
ecclesiastical courts, or even in the recent English court of probate.
So far as we are informed, the production and examination of all the
witnesses have been always required and thought necessary in this
state. (See opinion of Isham, J., in Dean vs. Dean, 27 Vt., 749.) We
are of opinion that the court was correct in ruling that the proponent
must examine all the attesting witnesses.

In Bootle vs. Blundeel (19 Vesey, Jr., 500, 502-509), cited in Thornton vs.
Thornton, supra , the Lord Chancellor (Eldon) said:

The subscribing witnesses are the witnesses of this court and not of
either party, as erroneously considered. If [he says] the object is to
establish a will, this court does not give the devisee the opportunity of
carrying it before a jury until all the three witnesses have been
examined, and will have them all examined, considering them as its
witnesses without entering into the dispute frequently occurring in a
court of law, whether the person called s the witness of the one party
or the other. . . .the court, as it will know the whole truth, expects that
all the witnesses shall be examined on the one side or the other.

In Denny vs. Pinney (60 Vt., 524), wherein one of the attesting witnesses
was not within the jurisdiction of the court and wherein it was insisted that
the proponent should have taken the deposition of that witness, the court
said:

It was not incumbent upon the proponent to produce the attesting

witness Bartlett in court. He was beyond reach of process. The
English practice adopted by this court requires the proponent only to
proceed and examine such of the attesting witnesses as are within
reach of process. (Thornton vs. Thornton, 39 Vt., 122.) He must be
within reach process, the legally obtainable at the trial.

In Chase vs. Lincoln (3 Mass., 236), decided in 1807, it was said:

The court observed that the legislature, in requiring three subscribing

witnesses to a will, did not contemplate the mere formality of signing
their names. An idiot might do this. These witnesses are placed round
the testator to ascertain and judge of his capacity, and the heir has a
right to insist on the testimony of all the three witnesses, to be given
to the jury. They must therefore all be produce, if living, and under the
power of the court. If it be impossible to procure any one of them, the
court will proceed without him ex necessitate rei. But no such
impossibility appears in this case. For anything that appears, the
absent witness might, with due diligence, have been found and
 summoned. The not producing of him may lead to a presumption that
his testimony, if produced, would be unfavorable to the probate of the
will. At any rate, the rule is too important and too explicit to be
dispensed with on light grounds.

In Sears vs. Dillingham (12 Mass., 358), decided in 1815, the court states:

It was argued, however, that no will can be proved, unless all the
subscribing witnesses, who are alive and within the control of the
court, are produced to testify. This, as a general rule, is undoubtedly
well settled both here and in England. But there are obvious
exceptions, as necessary to be regarded as the rule itself. The case
of witnesses having become infamous instantly occurs, as one of the
exceptions. They may be alive and within the control of the court, and
yet their testimony cannot be had, and the will may be proved without
it.

Section 33 of chapter 190 of the statutes of Massachusetts, enacted in

1817, and carried forward as section 2 of chapter 136 of the Revised
Statutes of 1902, provides:

If it appears to the probate court, by the consent in writing of the

heirs, or by other satisfactory evidence, but no person interested in
the estate of a person deceased intends to object to the probate of an
instrument purporting to be the will of such deceased person, the
court may grant probate thereof upon the testimony of one only of the
subscribing witnesses; and the affidavit of such witness, taken before
the register of probate, may be received as evidence.

In Brown vs. Wood (17 Mass., 68), decided in 1820, the court said:

It is not now a question, whether the will ought to be proved upon the
testimony of two of the witnesses, without accounting for the absence
of the third. The law is settled that it cannot be so done.

An examination of the subsequent adjudicated cases and the statutes fails

to disclose any modification of this rule in the State of Massachusetts.
In Evans vs. Evans (18 Miss., 402), the court, following the rule adopted in
Massachusetts, said:

The sole question presented by the appellant's counsel in this case is

resolved into the inquiry whether a will can be admitted to probate
upon the testimony of but one of the attesting witnesses to such will.

We are inclined to hold that no will can be proved, unless all the
subscribing witnesses, alive and within the control of the process of
the court, are produced to testify.

The rule that no will shall be valid to pass any estate, real or personal,
unless "attested and subscribed by three or more credible witnesses," is a
matter of substantive law and an element of the will's validity. The rule that
the attesting witnesses must be called to prove a will for probate is one of
preference made so by statute. This rule of evidence is not to be confused
with rules of quantity. There have been several reasons given for this rule
of preference for the attesting witnesses, one reason being that the party
opposing the claim of proper execution of the will has a right to the benefit
of cross-examining the attesting witnesses as to fraud, duress, or other
matters of defense. The law places these witnesses "around the testator to
ascertain and judge of his capacity" for the purpose of preventing frauds.
The soundness of the rule is well illustrated in the case under
consideration. Here the attesting clause was omitted and the testator
signed by mark. The petitioner produced only one of the attesting
witnesses. Had there not been a contest, this would have probably been
sufficient under section 631. While there is no testimony in the record to the
effect that the testator could neither read nor write, there is conclusive
evidence that he could sign his name. This fact is established by the
production of Exhibit 1, which all agree the testator did sign. The testator's
signature to the document shows that he could write, at least his name, in a
plain, clear manner, indicating a fairly good knowledge of writing. Had the
proponent shown that the other two subscribing witnesses were not within
the jurisdiction of the court and could not, therefore, be called, the due
execution of the will would still be very doubtful. Believing, as we do, that it
was the intention of the Legislature that the subscribing witnesses must be
called or good and sufficient reason shown why they could not be had, and
being supported by the authorities above cited and quoted, we must
conclude that the proponent did not comply with the provisions of the law in
the presentation of her case.

For the foregoing reasons, the judgment appealed from is reversed, without
costs in this instance. So ordered.

Torres, Moreland, and Araullo, JJ., concur.

4. Unson v. Abella, et.al

G.R. No. 17857 June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.

PEDRO UNSON, petitioner-appellee, vs. ANTONIO ABELLA, ET
AL., opponents-appellants.

Crispin Oben for appellants.

Pedro Guevarra and Carlos Ledesma for appellee.

VILLAMOR, J.:

On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old, who
was residing in the municipality of Pagsanjan, Province of Laguna,
executed her last will and testament with an attached inventory of her
properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on the
6th of January, 1921, and, as the record shows, the executor appointed in
the will, Pedro Unson, filed in the court of First Instance of Laguna on the
19th of January of the same year an application for the probate of the will
and the issuance of the proper letters of administration in his favor.

To said application an opposition was presently by Antonio Abella, Ignacia

Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will
of the deceased Zalamea was not executed in conformity with the
provinces of the law, inasmuch as it was not paged correlatively in letters,
nor was there any attestation clause in it, nor was it signed by the testatrix
and the witnesses in the presence of each other.

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

From the judgment of the court below, the contestants have appealed, and
in their brief they assign three errors, which, in their opinion, justify the
reversal of the judgment appealed from.

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

The arguments advanced by appellants' counsel in support of the first

assignment of error tend to impeach the credibility of the witnesses for the
proponent, specially that of Eugenio Zalamea. We have made a careful
examination of the evidence, but have not found anything that would justify
us in disturbing the finding of the court a quo. The attesting witnesses,
Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the
other witness to the will, Pedro de Jesus, they did sign each and every
page of the will and of the inventory in the presence of each other and of
the testatrix, as the latter did likewise sign all the pages of the will and of
the inventory in their presence.

In their brief the appellants intimate that one of the pages of the will was not
signed by the testatrix, nor by the witnesses on the day of the execution of
the will, that is, on the 19th of July, 1918, basing their contention on the
testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya
told him that one of the pages of the will had not been signed by the
witnesses, nor by the testatrix on the day of its execution. Palileo's
testimony is entirely contradicted by Gonzalo Abaya not only in the direct,
but in the rebuttal, evidence as well. To our mind, Palileo's testimony
cannot prevail over that of the attesting witnesses, Gonzalo Avaya and
Eugenio Zalamea. The appellants impeach the credibility of Eugenio
Zalamea, for having made a sworn declaration before the justice of the
peace of Santa Cruz, Laguna, before the trial of this case, to the effect that
he was really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take Zalamea's
testimony in connection with the dismissal of a criminal case against a
nephew of his, in whose success he was interested, and infer from this fact
the partiality of his testimony. We deem this allegation of little importance to
impeach the credibility of the witness Zalamea, especially because his
testimony is corroborated by the other attesting witness. Gonzalo Abaya,
and by attorney Luis Abaya, who had prepared the testament at the
instance of the testatrix. The foregoing is sufficient for us to conclude that
the first assignment of error made by the appellants is groundless.

The appellants contend that the court below erred in admitting the will to
probate notwithstanding the omission of the proponent to produce one of
the attesting witnesses.

At the trial of this case the attorneys for the proponent stated to the court
that they had necessarily to omit the testimony of Pedro de Jesus, one of
the persons who appear to have witnessed the execution of the will, for
there were reasonable grounds to believe that said witness was openly
hostile to the proponent, inasmuch as since the announcement of the trial
of the petition for the probate of the will, said witness has been in frequent
communication with the contestants and their attorney, and has refused to
hold any conference with the attorneys for the proponent. In reply to this,
the attorney for the contestants, said to the court, "without discussing for
the present whether or not in view of those facts (the facts mentioned by
the attorneys for the petitioner), in the hypothesis that the same are proven,
they are relieved from producing that witness, for while it is a matter not
decided, it is a recognized rule that the fact that a witness is hostile does
not justify a party to omit his testimony; without discussing this, I say, I
move that said statement be stricken out, and if the proponent wants these
facts to stand to stand in the record, let him prove them." The court a
quo ruled, saying, "there is no need." 

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

In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently
decided by this court, in deciding the question whether a will can be
admitted to probate, where opposition is made, upon the proof of a single
attesting witness, without producing or accounting for the absence of the
other two, it was said; "while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses
must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three
of the attesting witnesses were not produced, but the probable reason is
found in the fact that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set for the hearing,
which was April 5, 1919, no formal contest was entered until the very day
set for the hearing; and it is probable that the attorney for the proponent,
believing in good faith that probate would not be contested, repaired to the
court with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case to go to
proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule
expounded in the case above referred to; and were it not for a fact now to
be mentioned, this court would probably be compelled to reverse this case
on the ground that the execution of the will had not been proved by a
sufficient number of attesting witnesses.

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

There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second
instance. In the first place it eliminates the judicial criterion of the Court of
First Instance upon the point there presented and makes the appellate
court in effect a court of first instance with reference to that point, unless
the case is remanded for a new trial. In the second place, it permits, if it
does not encourage, attorneys to trifle with the administration of justice by
concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions
more simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood

as laying down any hard and fast rule that would prove an embarrassment
to this court in the administration of justice in the future. In one way or
another we are constantly here considering aspects of cases and applying
doctrines which have escaped the attention of all persons concerned in the
litigation below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it. What we
mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been presented
in that court, we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the question
relates to a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the
appellant had raised this question in the lower court, either at the hearing or
upon a motion for a new trial, that court would have had the power, and it
would have been its duty, considering the tardy institution of the contest, to
have granted a new trial in order that all the witnesses to the will might be
brought into court. But instead of thus calling the error to the attention of
the court and his adversary, the point is first raised by the appellant in this
court. We hold that this is too late.

Properly understood, the case of Cabang vs. Delfinado, supra, contains

nothing inconsistent with the ruling we now make, for it appears from the
opinion in that case that the proponent of the will had obtained an order for
a republication and new trial for the avowed purpose of presenting the two
additional attesting witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent reason to take their
testimony. Both parties in that case were therefore fully apprised that the
question of the number of witnesses necessary to prove the will was in
issue in the lower court.

In the case at bar, we do not think this question properly to have been
raised at the trial, but in the memorandum submitted by the attorney for the
appellants to the trial court, he contended that the will could not be
admitted to probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court found
that the evidence introduced by the proponent, consisting of the testimony
of the two attesting witnesses and the other witness who was present at the
execution, and had charge of the preparation of the will and the inventory,
Exhibits A and A-1, was sufficient. As announced in Cabang vs. Delfinado,
supra, the general rule is that, where opposition is made to the probate of a
will, the attesting witnesses must be produced. But there are exceptions to
this rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or he
appears hostile to the cause of the proponent. In such cases, the will may
be admitted to probate without the testimony of said witness, if, upon the
other proofs adduced in the case, the court is satisfied that the will has
been duly executed. Wherefore, we find that the non-production of the
attesting witness, Pedro de Jesus, as accounted for by the attorney for the
proponent at the trial, does not render void the decree of the court a quo,
allowing the probate.

But supposing that said witness, when cited, had testified adversely to the
application, this would not by itself have change the result reached by the
court a quo, for section 632 of the Code of Civil Procedure provides that a
will can be admitted to probate, notwithstanding that one or more witnesses
do not remember having attested it, provided the court is satisfied upon the
evidence adduced that the will has been executed and signed in the
manner prescribed by the law.

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

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

In witness whereof, I sign this will composed of ten folios including the page
containing the signatures and the attestation of the witnesses; I have
likewise signed the inventory attached to this will composed of ten folios in
the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de
Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this
19th of July, 1918.

And the attestation clause is as follows:

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

(Sgd.) GONZALO ABAYA,

EUGENIO ZALAMEA,
PEDRO DE JESUS.

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

As to the paging of the will in Arabic numerals, instead of in letters, we

adhere to the doctrine announced in the case of Aldaba vs. Roque (p.
378, ante), recently decided by this court. In that case the validity of the will
was assailed on the ground that its folios were paged with the letters A, B,
C, etc., instead of with the letters "one," two," "three," etc. It was held that
this way of numbering the pages of a will is in compliance with the spirit of
the law, inasmuch as either one of these methods indicates the correlation
of the pages and serves to prevent the abstraction of any of them. In the
course of the decision, we said: "It might be said that the object of the law
in requiring that the paging be made in letters is to make falsification more
difficult, but it should be noted that since all the pages of the testament are
signed at the margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In other words the
more or less degree of facility to imitate the writing of the letters A, B, C,
etc., does not make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity of the testament,
consisting in the signatures on the left margins of the testament and the
paging thereof as declared in the attestation clause, the holding of this
court in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:

"The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless, and
frustrative of the testator's last will, must be disregarded."

In that case the testament was written on one page, and the attestation
clause on another. Neither one of these pages was numbered in any way,
and it was held: "In a will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the bottom by the testator
and three witnesses, and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses it is not necessary
that both sheets be further signed on their margins by the testator and the
witnesses, or be paged."

This means that, according to the particular case, the emission of paging
does not necessarily render the testament invalid.

The law provides that the numbering of the pages should be in letters
placed on the upper part of the sheet, but if the paging should be placed in
the lower part, would the testament be void for this sole reason? We
believe not. The law also provides that the testator and the witnesses must
sign the left margin of each of the sheets of the testament; but if they
should sign on the right margin, would this fact also annul the testament?
Evidently not. This court has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):

"It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every page;
and it is undeniable that the general doctrine is to the effect that all
statutory requirements as to the execution of wills must be fully complied
with. The same execution for wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court."
"Still some details at time creep into legislative enactments which are so
trivial that it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect that
the signatures of the testator and witnesses shall be written on the left
margin of each page - rather than on the margin - seems to be of this
character. So far as concerns the authentication of the will, and of every
part thereof, it can make no possible difference whether the names appear
on the left or on the right margin, provided they are on one or the other. In
Craig vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918, not
reported), this court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in the case of
Re Estate of Saguinsin (41 Phil., 875) a will was likewise declared void
which contained the necessary signatures on the margin of each leaf
(folio), but not in the margin of each page containing written matter."

We do not desire to intimate that the numbering in letters is a requisite of

no importance. But since its principal object is to give the correlation of the
pages, we hold that his object may be attained by writing one, two, three,
etc., as well as by writing A, B, C, etc.

We see no reason why the same rule should not be applied where the
paging is in Arabic numerals, instead of in letters, as in the inventory in
question. So that, adhering to the view taken by this court in the case of
Abangan vs. Abangan, and followed in Aldava vs. Roque, with regard to
the appreciation of the solemnities of a will, we find that the judgement
appealed from should be, as is hereby, affirmed with the costs against the
appellants. So ordered.

Araullo, C.J., Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ.,

concur.