Atty Almazan Cases 2

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G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.GERTRUI! A"ANGAN,executrix-appellee,vs. ANA!TA#IA A"ANGAN, ET AL.,opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

A$AN#E%A,J.&

On September 19, 1917, the Court of First Instance ofCebu admitted to probate na ban!an"s #ill executed$ul%, 191&. From this decision the opponent"sappealed.chanroblesvirtuala#librar%chanrobles virtualla# librar%

Said document, dul% probated as na ban!an"s #ill,consists of t#o sheets, the first of #hich contains all ofthe disposition of the testatrix, dul% si!ned at the bottomb% 'artin 'ontalban (in the name and under thedirection of the testatrix) and b% three #itnesses. *hefollo#in! sheet contains onl% the attestation clause dul%si!ned at the bottom b% the three instrumental #itnesses.+either of these sheets is si!ned on the left mar!in b% thetestatrix and the three #itnesses, nor numbered b% lettersand these omissions, accordin! to appellants" contention,are defects #hereb% the probate of the #ill should havebeen denied. e are of the opinion that the #ill #as dul%

admitted toprobate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

In reuirin! that each and ever% sheet of the #ill shouldalso be si!ned on the left mar!in b% the testator and three

#itnesses in the presence of each other, ct +o. /&0(#hich is the one applicable in the case) evidentl% has forits ob2ect (referrin! to the bod% of the #ill itself) to avoidthe substitution of an% of said sheets, thereb% chan!in!the testator"s dispositions. 3ut #hen these disposi tions are#holl% #ritten on onl% one sheet si!ned at the bottom b%

the testator and three #itnesses (as the instant case), theirsi!natures on the left mar!in of said sheet #ould becompletel% purposeless. In reuirin! this si!nature on themar!in, the statute too4 into consideration, undoubtedl%,the case of a #ill #ritten on several sheets and must havereferred to the sheets #hich the testator and the #itnessesdo not have to si!n at the bottom. differentinterpretation #ould assume that the statute reuires thatthis sheet, alread% si!ned at the bottom, be si!ned t#ice.e cannot attribute to the statute such an intention. sthese si!natures must be #ritten b% the testator and the#itnesses in the presence of each other, it appears that, if

the si!natures at the bottom of the sheet !uaranties itsauthenticit%, another si!nature on its left mar!in #ould beunneccessar% and if the% do not !uarant%, samesi!natures, affixed on another part of same sheet, #ouldadd nothin!. e cannot assume that the statute re!ards ofsuch importance the place #here the testator and the#itnesses must si!n on the sheet that it #ould considerthat their si!natures #ritten on the bottom do not!uarant% the authenticit% of the sheet but, if repeated onthe mar!in, !ive sufficientsecurit%.chanroblesvirtuala#librar%chanrobles virtualla# librar%

In reuirin! that each and ever% pa!e of a #ill must benumbered correlativel% in letters placed on the upper partof the sheet, it is li4e#ise clear that the ob2ect of ct +o./&0 is to 4no# #hether an% sheet of the #ill has beenremoved. 3ut, #hen all the dispositive parts of a #ill are#ritten on one sheet onl%, the ob2ect of the statute

disappears because the removal of this sin!le sheet,althou!h unnumbered, cannot behidden.chanroblesvirtuala#librar%chanrobles virtual la#librar%

hat has been said is also applicable to the attestation

clause. herefore, #ithout considerin! #hether or notthis clause is an essential part of the #ill, #e hold that inthe one accompan%in! the #ill in uestion, the si!naturesof the testatrix and of the three #itnesses on the mar!inand the numberin! of the pa!es of the sheet areformalities not reuired b% the statute. 'oreover,referrin! speciall% to the si!nature of the testatrix, #e canadd that same is not necessar% in the attestation clausebecause this, as its name implies, appertains onl% to the#itnesses and not to the testator since the latter does notattest, but executes, the#ill.chanroblesvirtuala#librar%chanrobles virtual la#

librar%

S%nthesi5in! our opinion, #e hold that in a #illconsistin! of t#o sheets the first of #hich contains all thetestamentar% dispositions and is si!ned at the bottom b%the testator and three #itnesses and the second containsonl% the attestation clause and is si!ned also at thebottom b% the three #itnesses, it is not necessar% thatboth sheets be further si!ned on their mar!ins b% thetestator and the #itnesses, or bepa!ed.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he ob2ect of the solemnities surroundin! the executionof #ills is to close the door a!ainst bad faith and fraud, toavoid substitution of #ills and testaments and to !uarant%their truth and authenticit%. *herefore the la#s on thissub2ect should be interpreted in such a #a% as to attainthese primordal ends. 3ut, on the other hand, also one

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must not lose si!ht of the fact that it is not the ob2ect ofthe la# to restrain and curtail the exercise of the ri!ht toma4e a #ill. So #hen an interpretation alread% !ivenassures such ends, an% other interpretation #hatsoever,that adds nothin! but demands more reuisites entirel%unnecessar%, useless and frustative of the testator"s last

#ill, must bedisre!arded.chanroblesvirtuala#librar%chanrobles virtualla# librar%

s another !round for this appeal, it is alle!ed therecords do not sho# that the testarix 4ne# the dialect in#hich the #ill is #ritten. 3ut the circumstance appearin!in the #ill itself that same #as executed in the cit% ofCebu and in the dialect of this localit% #here the testatrix#as a nei!hbor is enou!h, in the absence of an% proof tothe contrar%, to presume that she 4ne# this dialect in#hich this #ill is

#ritten.chanroblesvirtuala#librar%chanrobles virtual la#librar%

For the fore!oin! considerations, the 2ud!ment appealedfrom is hereb% affirmed #ith costs a!ainst the appellants.So ordered.chanroblesvirtuala#librar%chanrobles virtualla# librar%

Arellano, C.J., Torres, Johnson, Araullo, Street and

Malcolm, JJ., concur.

G.R. No. L-'2() *ebr+ar 1), 1912

ER "ARUT,Petitioner-Appellant, vs. *AU!TIN#A"A#UNGAN, ET AL.,opponents-appellees.

A. M. Jimenez for appellant.

Ramon Queruin for appellees.

/RELAN,J.6chanrobles virtual la# librar%

*his case is closel% connected #ith the case ofFaustinoCaacun!an "s. Pedro #arutand another, +o.&/0,12ust decided b% this court, #herein there #as anapplication for the probate of an alle!ed last #ill and

testament of the same person the probate of #hose #ill isinvolved in thissuit.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*his appeal arises out of an application on the part of8edro 3arut to probate the last #ill and testament of'aria Salomon, deceased. It is alle!ed in the petition ofthe probate that 'aria Salomon died on the 7th da% of+ovember, 19, in the pueblo of Sinait, Ilocos Sur,leavin! a last #ill and testament bearin! date 'arch /,197. Severo !a%an, *imotea Inoselda, Catalino

:a!asa, and . '. $imene5 are alle!ed to have been#itnesses to the execution thereof. 3% the terms of said#ill 8edro 3arut received the lar!er part of decedent"spropert%.chanroblesvirtuala#librar%chanrobles virtualla# librar%

*he ori!inal #ill appears on pa!e ; of the record and is inthe Ilocano dialect. Its translation into Spanish appears atpa!e 11. fter disposin! of her propert% the testatrixrevo4ed all former #ills b% her made. She also stated insaid #ill that bein! unable to read or #rite, the same hadbeen read to her b% Ciriaco Concepcion and *imotea

Inoselda and that she had instructed Severo !a%an tosi!n her name to it astestatrix.chanroblesvirtuala#librar%chanrobles virtualla# librar%

*he probate of the #ill #as contested and opposed b% anumber of the relatives of the deceased on various

!rounds, amon! them that a later #ill had been executedb% the deceased. *he #ill referred to as bein! a later #illis the one involved in case +o. &/0 alread% referred to.8roceedin! for the probate of this later #ill #ere pendin!at the time. *he evidence of the proponents and of theopponents #as ta4en b% the court in both cases for the

purpose of considerin! themto!ether.chanroblesvirtuala#librar%chanrobles virtualla# librar%

In the case before us the learned probate court found thatthe #ill #as not entitled to probate upon the sole !roundthat the hand#ritin! of the person #ho it is alle!edsi!ned the name of the testatrix to the #ill for and on herbehalf loo4ed more li4e the hand#ritin! of one of theother #itnesses to the #ill than that of the person #hosehand#ritin! it #as alle!ed to be. e do not believe thatthe mere dissimilarit% in #ritin! thus mentioned b% the

court is sufficient to overcome the uncontradictedtestimon% of all the #itnesses to the #ill that thesi!nature of the testatrix #as #ritten b% Severo !a%an ather reuest and in her presence and in the presence of allthe #itnesses to the #ill. It is immaterial #ho #rites thename of the testatrix provided it is #ritten at her reuestand in her presence and in the presence of all the#itnesses to the execution of the#ill.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he court seems , b% inference at least, to have had in

mind that under the la# relatin! to the execution of a #illit is necessar% that the person #ho si!ns the name of thetestatrix must after#ards si!n his o#n name and that, invie# of the fact that, in the case at bar, the name si!nedbelo# that of the testatrix as the person #ho si!ned hername, bein!, from its appearance, not the samehand#ritin! as that constitutin! the name of the testatrix,

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the #ill is accordin!l% invalid, such fact indicatin! thatthe person #ho si!ned the name of the testatrix failed tosi!n his o#n. e do not believe that this contention canbe sustained. Section &1 of the Code of Civil 8rocedurereads as follo#s6

+o #ill, except as provided in the precedin! section,shall be valid to pass an% estate, real or personal, norchar!e or effect the same, unless it be in #ritin! andsi!ned b% the testator, or b% the testator"s name #ritten b%some other person in his presence, and b% his expensesdirection, and attested and subscribed b% three or morecredible #itnesses in the presence of the testator and ofeach. . . .

*his is the important part of the section under the termsof #hich the court holds that the person #ho si!ns thename of the testator for him must also si!n his o#n name

*he remainder of the section reads6

*he attestation shall state the fact that the testator si!nedthe #ill, or caused it to be si!ned b% some other person,at his express direction, in the presence of three#itnesses, and that the% attested and subscribed it in hispresence and in the presence of each other. 3ut theabsence of such form of attestation shall not render the#ill invalid if it is proven that the #ill #as in fact si!nedand attested as in this section provided.

From these provisions it is entirel% clear that, #ith

respect to the "alidit$ of the #ill, it is unimportant#hether the person #ho #rites the name of the testatrixsi!ns his o#n or not. *he important thin! is that it clearl%appears that the name of the testatrix #as si!ned at herexpress direction in the presence of three #itnesses andthat the% attested and subscribed it in her presence and inthe presence of each other. *hat is all the statute reuires.

It ma% be #ise as a practical matter that the one #hosi!ns the testator"s name si!ns also his o#n but that it isnot essential to the "alidit$ of the #ill. hether oneparson or another si!ned the name of the testatrix in thiscase is absolutel% unimportant so far as the validit% of her#ill is concerned. *he plain #ordin! of the statute sho#s

that the reuirement laid do#n b% the trial court, if it didla% do#n, is absolutel% unnecessar% under the la# andthe reasons underl%in! the provisions of the statuterelatin! to the execution of #ills do not in an% sensereuire such a provision. From the standpoint of lan!ua!eit is an impossibilit% to dra# from the #ords of the la#the inference that the persons #ho si!ns the name of thetestator must si!n his o#n name also. *he la# reuiresonl% three #itnesses to a #ill, notfour.chanroblesvirtuala#librar%chanrobles virtual la#librar%

+or is such reuirement found in an% other branch of thela#. *he name of a person #ho is unable to #rite ma% besi!ned b% another b% express direction to an% instrument4no#n to the la#. *here is no necessit% #hatever, so faras the validit% of the instrument is concerned, for theperson #ho #rites the name of the principal in thedocument to si!n his o#n name also. s a matter ofpolic% it ma% be #ise that he do so inasmuch as i t #ould!ive such intimation as #ould enable a person provin!the document to demonstrate more readil% the executionb% the principal. 3ut as a matter of essential validit% ofthe document, it is unnecessar%. *he main thin! to beestablished in the execution of the #ill is the si!nature ofthe testator. If that si!nature is proved, #hether it be#ritten b% himself or b% another at his reuest, it is nonethe less valid, and the fact of such si!nature can beproved as perfectl% and as completel% #hen the personsi!nin! for the principal omits to si!n his o#n name as itcan #hen he actuall% si!ns. *o hold a #ill invalid for the

lac4 of the si!nature of the person si!nin! the name ofthe principal is, in the particular case, a completeabro!ation of the la# of #ills, as it re2ects and destro%s a#ill #hich the statute expressl% declares isvalid.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*here have been cited three cases #hich it is alle!ed arein opposition to the doctrine #hich #e have herein laiddo#n. *he% are%& parte Santia!o (0 8hil. :ep., &9/),%&parte rcenas (0 8hil. :ep., 7), and$ohn ?oe, b% the testator, :ichard:oe> or in this form6 >3% the testator. $ohn ?oe, :ichard:oe.> ll this must be #ritten b% the #itness si!nin! atthe reuest of the testator.

*he onl% uestion for decision in that case, as #e havebefore stated, #as presented b% the fact that the person

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#ho #as authori5ed to si!n the name of the testator to the#ill actuall% failed to si!n such name but insteadsi!ned his o(n thereto. *he decision in that case relatedonl% to thatuestion.chanroblesvirtuala#librar%chanrobles virtualla# librar%

side from the presentation of an alle!ed subseuent #illthe contestants in this case have set forth no reason#hatever #h% the #ill involved in the present liti!ationshould not be probated. *he due and le!al execution ofthe #ill b% the testatrix is clearl% established b% theproofs in this case. @pon the facts, therefore, the #illmust be probated. s to the defense of a subseuent #ill,that is resolved in case +o. &/0 of #hich #e havealread% spo4en. e there held that said later #ill not the#ill of thedeceased.chanroblesvirtuala#librar%chanrobles virtual

la# librar%

*he 2ud!ment of the probate court must be and is hereb%reversed and that court is directed to enter an order in theusual form probatin! the #ill involved in this liti!ationand to proceed #ith such probate in accordance #ith la#.

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

G.R. No. L-204) /ar 19, 1924

In re will of TAN IU#, eea5e. /A/ERTA

"A!E,petitioner-appellant.

C.). *an!leon for petitioner and appellant.

ARAULL, C.J.:chanrobles virtual la# librar%

On 'arch ;, 19/1, 'amerta 3ase instituted thisproceedin! in the Cour t of First Instance of Ae%te for theprobate of the #ill, =xhibit , executed, accordin! to her,b% the Chinaman *an ?iuco, a resident of themunicipalit% of 'alitbo! of said province, #ho died on?ecember , 19/. *hat court denied the probate of the

#ill on +ovember /, 19//, and the petitioner brou!ht thecase on appeal to this court, alle!in! that the lo#er courterred in holdin! that said #ill #as not si!ned b% threeinstrumental #itnesses and in not allo#in! it toprobate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

fter a hearin! on the petition, the Court of First Instanceentered the order appealed from, in #hich it is found thatsaid #ill #as executed #ith all the solemnities prescribedb% ct +o. /&0, except that i t #as not si!ned b% threeinstrumental #itnesses beside the si!nature of the testator

and before the attestation clause, and this fact is the!round upon #hich the petition #asdenied.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he document in uestion, =xhibit , appears to havebeen si!ned b% Simplicio Sala b% order of the testator,#hose name is before the said si!nature, b% reason of thelatter"s incapacit% on account of his #ea4ness and thetremblin! of his hand, the testator also statin! that hedirected said Simplicio Sala to si!n it in his name and inthe presence of three #itnesses #ho also si!ned #ith him

at the bottom of said document, and on the left mar!in ofeach of its three pa!es correlativel% numbered in lettersb% Sala in the name of the testator *an ?iuco and b% the#itnesses therein mentioned, named 8ablo 'aturan,Aadislao Fenomeno, and =nriue 8eBaredondo. fter thesi!nature of the testator, *an ?iuco b% Simplicio Sala, thefollo#in! para!raph appears6

e, the undersi!ned #itnesses to the for!oin! #ill, dohereb% state that the testator si!ned this #ill and each ofits sheets in the presence of all and each of us, and #eand each of us li4e#ise did si!n this #ill and all of itssheets in the presence of the testator and each of us,#itnesses.

>*+ ?I@CO3% >SI'8AICIO SA>A?ISAO F=+O'=+O>83AO '*@:+>=+:I@= 8=D:=?O+?O>

Section &1 of the Code of Civil 8rocedure, as amendedb% ct +o. /&0, provides, indeed, amon! the necessar%reuirements before a #ill can be probated, that it beattested and si!ned b% three or more credible #itnesses inthe presence of the testator and of each other. nd said

section, as amended, further provides as follo#s6

E E E *he testator or the person reuested b% him to #ritehis name and the instrumental #itnesses of the #ill, shallalso si!n, as aforesaid, each and ever% pa!e thereof, onthe left mar!in, and said pa!es shall be numberedcorrelativel% in letters placed on the upper part of eachsheet. *he attestation shall state the number of sheets orpa!es used, upon #hich the #ill is #ritten, and that factthat the testator si!ned the #ill and ever% pa!e thereof, orcaused some other person to #rite his name, under hisexpress direction, in the presence of three #itnesses, and

the latter #itnessed and si!ned the #ill and all pa!esthereof in the presence of the testator and of each other.

Instrumental #itness, as defined b% =scriche inhis+iccionario Razonado de *e!islacion $Jurisprudencia, volume 0, pa!e 111, is one #ho ta4espart in the execution of an instrument or

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#ritin!.chanroblesvirtuala#librar%chanrobles virtual la#librar%

t present and under the la#s no# in force, particularl%ct +o. /&0 amendator% to said section &1 of the Codeof Civil 8rocedure, #hen a #ill is to be executed, the

testator dra#s or #rites it personall% or throu!h anotherperson and si!ns it also personall%, or if he is ph%sicall%incapacitated, as in the instant case, throu!h anotherperson #ho ma% or ma% not be the one #ho prepared or#rote the #ill, that is, the document constitutin! thetestator"s last #ill and testament. *he #ill havin! thusbeen prepared and before it is si!ned b% the testator orthe person actin! in his stead, or the one directed b% himto si!n it in his name, in #hich case the name of thetestator is #ritten before that of the si!ner, as abovestated, in order that said document ma% have thecharacter of a valid #ill, the testator !athers three or

more credible #itnesses and tells them that the contentsof said document is his #ill, #ithout informin! them ofits contents, and then the testator, or the person directedb% him to do so, si!ns it in the presence of the testatorand of each other, and the testator or the person actin! inhis stead, as #ell as the three #itnesses si!n on the leftmar!in of each pa!e or sheet, #hich must be numberedcorrelativel% in letters on the upper part of the pa!e.*hese #itnesses are the #itnesses, referred to in theaforesaid la# as instrumental #itnesses, for the simplereason that the% too4 part in the execution of aninstrument or document 4no#n as #ill, their participationbein! limited to the actsaforementioned.chanroblesvirtuala#librar%chanroblesvirtual la# librar%

In dealin! #ith attestation, said section &1 of the Codeof Civil 8rocedure, as amended b% ct +o. /&0, doesnot sa% that said #itnesses must be different from those

#ho si!ned the attestation clause, for in the first part ofsaid section, after spea4in! of the si!nature of the testatoror the person si!nin! in his place, it adds, and attestedand suscried $ three or more credile (itnesses in the

presence of the t estator and of each other,> from #hich itclearl% follo#s that the same #itnesses #ho si!ned on the

left mar!in of each pa!e of the document presented b%the testator to them as his #ill, must be the ones #hoshould si!n the attestation clause, inasmuch as the% alonecan certif% the facts to be stated in said clause, for havin!ta4en a direct part therein, as the% sa# the testator si!nthe #ill, or the person reuested b% him to si!n all thesheets of the #ill, that is, the document constitutin! hislast #ill and testament, and affirm that it #as si!nedunder his express direction in the presence of said#itnesses and that all the sheets thereof had also beensi!ned b% them in the presence of said testator and ofeach of them, as stated in the attestation clause of the #ill

of the deceased *an ?iuco, #ith the other detailsappropriate in saidclause.chanroblesvirtuala#librar%chanrobles virtual la#librar%

3esides, as ma% be seen, the said three #itnesses #hosi!ned the attestation clause, did so also on the leftmar!in and beside the si!nature of the testator or ofSimplicio Sala #ho si!ned b% order of the latter, and ifaccount is ta4en of the fact that these #itnesses are>instrumental> #itnesses, as above demonstrated, andthe% have made reference to their o#n si!natures, as #ellas that of the testator and of the person #ho si!ned b% thelatter"s order belo# the attestation clause, it is evident thatin the instant case, it is merel% a matter of technicalit%devoid of an% importance as to the probate of the #illthat said #itnesses are called instrumental #itnesses, as i fthe% #ere different from those #ho have to si!n theattestation clause, for all of them are but the same

#itnesses and, as this court held in the case of ban!anvs. ban!an (0 8hil., 07&), >*he ob2ect of thesolemnities surroundin! the execution of #ills is to closethe door a!ainst bad faith and fraud, to avoid substitutionof #ills and testaments and to !uarantee their truth andauthenticit%. *herefore the la#s on this sub2ect should be

interpreted in such a #a% as to attain these primordialends. 3ut, on the other hand, also one must not lose si!htof the fact that it is not the ob2ect of the la# to restrainand curtail the exercise of the ri!ht to ma4e a #ill. So#hen a interpretation alread% !iven assures such ends,an% other interpretation #hatsoever, that adds nothin! butdemands more reuisites entirel% unnecessar%, uselessand frustative of the testator"s last #ill, must bedisre!arded> #hich doctrine must be applied in this case,in vie# of the facts herein mentioned and #hat has beenabovedemonstrated.chanroblesvirtuala#librar%chanrobles

virtual la# librar%

For all of the fore!oin!, the order appealed from isreversed, and the document, =xhibit , presented b% theproponent as the last #ill and testament of the deceased*an ?iuco is admitted to probate, #ithout special findin!as to costs of both instances. So ordered.

EN "AN#

6G.R. No. 91)0. /ar 31, 191). 7

/ARIAN LEAN,Petitioner-Appellant, v.

AR#AI LEA%, ob8eor-a::ellee.

$iene Llane5 forAppellant.

!evero ;ernano forAppellee.

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. 1&01 h% do %ou believe $ulio $avellanasi!nedJ chanrobles virtual la# librar%

. 1&01 3ecause he had the pen in his hand, #hich#as restin! on the paper, thou!h I did not actuall% seehim si!n.chanroblesvirtuala#librar%chanrobles virtual

la# librar%

. 1&01 =xplain this contradictor%statement.chanroblesvirtuala#librar%chanrobles virtualla# librar%

. 1&01 fter I si!ned I as4ed permission to leave,because I #as in a hurr%, and #hile I #as leavin! $uliohad alread% ta4en the pen in his hand, as it appeared, forthe purpose of si!nin!, and #hen I #as near the door Ihappened to turn m% face and I sa# that he had his hand#ith the pen restin! on the #ill, movin! it as if for the

purpose of si!nin!.chanroblesvirtuala#librar%chanroblesvirtual la# librar%

. 1&01 State positivel% #hether $ulio moved hishand #ith the pen as if for the purpose of si!nin!, or#hether he #as si!nin! chanrobles virtual la# librar%

. I believe he #as si!nin!.

*he truth and accurac% of the testimon% of this #itnessdoes not seem to have been uestioned b% an% of theparties to the proceedin!s, but the court, nevertheless,

found the follo#in! facts6

On the /&th da% of ?ecember, 191, 'acario $abonetaexecuted under the follo#in! circumstances thedocument in uestion, #hich has been presented forprobate as his #ill6chanrobles virtual la# librar%

3ein! in the house of rcadio $arandilla, in $aro, in thisprovince, he ordered that the document in uestion be#ritten, and callin! $ulio $avellana, niceto $albuena,and Isabelo $ena as #itnesses, executed the saiddocument as his #ill. *he% #ere all to!ether, and #ere inthe room #here $aboneta #as, and #ere present #hen he

si!ned the document, Isabelo $ena si!nin! after#ards as a#itness, at his reuest, and in his presence and in thepresence of the other t#o #itnesses. niceto $albuenathen si!ned as a #itness in the presence of the testator,and in the presence of the other t#o persons #ho si!nedas #itnesses. t that moment Isabelo $ena, bein! in ahurr% to leave, too4 his hat and left the room. s he #asleavin! the house $ulio $avellana too4 the pen in his handand put himself in position to si!n the #ill as a #itness,but did not si!n in the presence of Isabelo $ena butnevertheless, after $ena had left the room the said $ulio$avellana si!ned as a #itness in the presence of the

testator and of the #itness niceto $albuena.

e can not a!ree #ith so much of the above findin! offacts as holds that the si!nature of $avellana #as notsi!ned in the presence of $ena, in compliance #ith theprovisions of section &1 of the Code of Civil 8rocedure.*he fact that $ena #as still in the room #hen he sa#$avellana movin! his hand and pen in the act of affixin!his si!nature to the #ill, ta4en to!ether #ith thetestimon% of the remainin! #itnesses #hich sho#s that$avellana did in fact there and then si!n his name to the#ill, convinces us that the si!nature #as affixed in thepresence of $ena. *he fact that he #as in the act ofleavin!, and that his bac4 #as turned #hile a portion ofthe name of the #itness #as bein! #ritten, is of noimportance. Ke, #ith the other #itnesses and the testator,had assembled for the purpose of executin! thetestament, and #ere to!ether in the same room for thatpurpose, and at the moment #hen the #itness $avellana

si!ned the document he #as actuall% and ph%sicall%present and in such position #ith relation to $avellanathat he could see ever%thin! #hich too4 place b% merel%castin! his e%es in the proper direction, and #ithout an%ph%sical obstruction to prevent hi s doin! so, therefore #eare of opinion that the document #as in fact si!ned

before he finall% left the room.

*he purpose of a statutor% reuirement that the #itnesssi!n in the presence of the testator is said to be that thetestator ma% have ocular evidence of the identit% of theinstrument subscribed b% the #itness and himself, and the!enerall% accepted tests of presence are vision and mentalapprehension. (See m. L =n!. =nc. of Aa#, vol. ;, p.99, and cases there cited.)

In the matter of 3edell (/ Connol% (+..), ;/) it #asheld that it is sufficient if the #itnesses are to!ether for

the purpose of #itnessin! the execution of the #ill, and ina position to actuall% see the testator #rite, if the% chooseto do so and there are man% cases #hich la% do#n therule that the true test of vision is not #hether the testatoractuall% sa# the #itness si!n, but #hether he mi!ht haveseen him si!n, considerin! his mental and ph%sicalcondition and position at the time of the subscription.(Spoonemore "s. Cables, && 'o., 79.)chanrobles virtualla# librar%

*he principles on #hich these cases rest and the tests ofpresence as bet#een the testator and the #itnesses are

euall% applicable in determinin! #hether the #itnessessi!ned the instrument in the presence of each other, asreuired b% the statute, and appl%in! them to the factsproven in these proceedin!s #e are of opinion that thestatutor% reuisites as to the execution of the instrument#ere complied #ith, and that the lo#er court erred inden%in! probate to the #ill on the !round stated in the

7


8/55

rulin! appealedfrom.chanroblesvirtuala#librar%chanrobles virtual la#librar%

e are of opinion from the evidence of record that theinstrument propounded in these proceedin!s #as

satisfactoril% proven to be the last #ill and testament of'acario $aboneta, deceased, and that it should thereforebe admitted toprobate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he 2ud!ment of the trial court is reversed, #ithoutespecial condemnation of costs, and after t#ent% da%s therecord #ill be returned to the court form #hence it came,#here the proper orders #ill be entered in conformancehere#ith. Soordered.chanroblesvirtuala#librar%chanrobles virtual

la# librar%

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.


9/55

It is true that the #itness 'ariano Ma!uirre, #ho #asreuested b% the testator to #rite his name and surnameat the end of his #ill, did not affix his o#n si!natureimmediatel% belo# the name and surname of $uanMalamero and belo# the cross placed b% the latter #iththe #ords >b% reuest of the testator $uan Malamero> but

in the said #ill are clearl% stated the reason #h% it #asnot si!ned b% the testator himself as also the reuest hemade to the #itness Ma!uirre, and a repetition thereof#as not necessar% further, that this same #itness, uponbein! reuested, #rote #ith his o#n hand the name andsurname of the testator, #ho after#ards placed the crossbet#een them, statin! that it #as his statement, all of#hich #as #ritten immediatel% after the said name andsurname of the testator and the cross made b% him, andthe same #as subscribed b% the three #itnesses in themanner provided b% la#.

*he essential reuisites prescribed b% the above-mentioned section &1 of the la# have been complied#ith, namel%, that three #itnesses #ere present at theexecution of the #ill of $uan Malamero at the datementioned therein that the% heard his statement that thesaid instrument, #ritten and dra#n up under his direction,contained his last #ill that the% sa# and #itnessed #hen,at the express reuest of the testator, and under hisdirection, the #itness, 'ariano Ma!uirre, #rote at thefoot of the #ill the name and surname of $uan Malamero,and #hen the latter put the cross bet#een his #rittenname and surname, each of the #itnesses subscribin! it atthe time and in the presence of each other.

For the reasons hereinbefore set forth it is our opinionthat the 2ud!ment appealed from should be reversed andthat it be declared, as #e no# do, that the #ill executedb% the late $uan Malamero #hile in li fe, under date of the/9th of October, 19, #as executed in accordance #ith

the la#, and that therefore it should be dul% admitted inorder that it ma% produce all conseuent le!al effects, andit is so ordered #ithout an% special rulin! as to costs.

rellano, C.$., 'apa, $ohnson, Carson, illard, and*race%, $$., concur.

EN "AN#

6G.R. No. L-)91. *ebr+ar 2, 1911.7

"EATRI> NERA, ET AL.,Plaintiffs-Appellees, v.NAR#I!A RI/AN,Defendant-Appellant.

$alerio *onanilla an Anre5 A5:rer forAppellant.

Analeo ia? forAppellees.

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the subscribin! #itnesses #as in the outer room #hen thetestator and the other describin! #itnesses si!ned theinstrument in the inner room, had it been proven, #ouldnot be sufficient in itself to invalidate the execution of the#ill. 3ut #e are unanimousl% of opinion that had thissubscribin! #itness been proven to have been in the outerroom at the time #hen the testator and the other

subscribin! #itnesses attached their si!natures to theinstrument in the inner room, it #ould have been invalidas a #ill, the attachin! of those si!natures undercircumstances not bein! done >in the presence> of the#itness in the outer room. *his because the line of visionfrom this #itness to the testator and the other subscribin!#itnesses #ould necessaril% have been impeded b% thecurtain separatin! the inner from the outer one >at themoment of inscription of each si!nature.>crala#virtua1a# librar%

In the case 2ust cited, on #hich the trial court relied, #eheld that62!c6chanrobles.com.ph

>*he true test of presence of the testator and the#itnesses in the execution of a #ill is not #hether the%actuall% sa# each other si!n, but #hether the% mi!hthave been seen each other si!n, had the% chosen to do so,considerin! their mental and ph%sical condition andposition #ith relation to each other at the moment ofinscription of each si!nature.>crala# virtua1a# librar%

3ut it is especiall% to be noted that the position of theparties #ith relation to each other at the moment of thesubscription of each si!nature, must be such that the%ma% see each other si!n if the% choose to do so. *his, ofcourse, does not mean that the testator and thesubscribin! #itnesses ma% be held to have executed the

instrument in the presence of each other if it appears thatthe% #ould not have been able to see each other si!n atthat moment, #ithout chan!in! their relative positions orexistin! conditions. *he evidence in the case relied uponb% the trial 2ud!e discloses that >at the moment #hen the#itness $avellana si!ned the document he #as actuall%and ph%sicall% present and in such position #ith relationto $aboneta that he could see ever%thin! that too4 place

b% merel% castin! his e%es in the proper direction and#ithout an% ph%sical obstruction to prevent his doin! so.>nd the decision merel% laid do#n the doctrine that theuestion #hether the testator and the subscribin!#itnesses to an alle!ed #ill si!n the instrument in thepresence of each other does not depend upon proof of thefact that their e%es #ere actuall% cast upon the paper at

the moment of its subscription b% each of them, but thatat that moment existin! conditions and their position #ithrelation to each other #ere such that b% merel% castin!the e%es in the proper direction the% could have seen eachother si!n. *o extend the doctrine further #ould open thedoor to the possibilit% of all manner of fraud,substitution, and the li4e, and #ould defeat the purposefor #hich this particular condition is prescribed in thecode as one of the reuisites in the execution of a #ill.

*he decree entered b% the court belo# admittin! theinstrument propounded therein to probate as the last #illand testament of 8edro :imando, deceased, is affirmed#ith costs of this instance a!ainst theAppellant.

rellano, C.J., 'apa, 'oreland and *rent,JJ., concur.

EN "AN#

6G.R. No. 2')4). eember 1', 192.7

Te5ae E5ae of *lorenia R. G /ATE, ET AL.,ER*E#T GA"RIEL ,Petitioner-Appellee, v. RITAR. /ATE, ET AL., o::onen5-a::ellan5.

R. Gon?ale? Llore, #arlo5 !. "a5a, Toma5 #ar@el an #am+5, elgao Reo, forAppellants.

Te a::ellee in i5 own bealf.

!


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*he 2ud!ment appealed from allo#ed the #ill ofFlorencia 'ateo dated Februar% &, 19/;, composed oft#o used sheets to probate. *he #ill appears to be si!nedb% the testatrix and three #itnesses on the left mar!in ofeach of the sheets, b% the testatrix alone at the bottom,and b% the three #itnesses after the attestation clause.*he testatrix died on u!ust 1;, 19/. Opposition to suchprobate #as filed b% :ita 'ateo, the testatrixs sister, andb% other relatives.

*he three attestin! #itnesses to this #ill, testif%in! in thiscase, declared that the si!natures of the testatrix #ere#ritten in their presence and that the% si!ned their namesin the presence of the testatrix and of each other.

*he testatrix from !irlhood 4ne# ho# to si!n her nameand did so #ith her ri!ht hand but, as the ri!ht side ofher bod% later became paral%5ed, she learned to si!n #ithher left hand and for man% %ears thereafter, up to the time

of her death, she used to si!n #ith that hand. Opponentsalle!e that Florencia 'ateo did not si!n this #ill.

*here are three salient ar!uments amon! those adducedb% the opponents in support of their opposition.

*he attestin! #itnesses testified that the testatrix si!nedbefore the% did. *he si!natures of the t estatrix on the leftmar!in of the t#o sheets of the #ill are bet#een thesi!natures of the t#o #itnesses idal :aBoa and $ulio


12/55

the evidence of the opposition itself, *omasa 'ateo hadbeen ta4en in b% the testatrix #hen the former #as but ;%ears old, and from then on up to the time of her deathhad never been separated from her.

*he opposition presented ?octor 3an4s as expert. Ketestified that the si!natures of the testatrix in the #ill are

not !enuine. *he petitioner, on the other hand, presentedanother expert, 8edro Serrano Aa4tao, #ho affirmed thatthese si!natures are !enuine. 3ut, over the testimon% ofthese experts, #e have the cate!orical and positivedeclaration of veracious #itnesses #ho affirm that thesesi!natures #ere #ritten b% the testatrix herself.

*he 2ud!ment appealed from is affirmed, #ith costsa!ainst the appellants. So ordered.

$ohnson, illamor, :omualde5 and ill-:eal concur.

=+ 3+C

G.R. No. L-21)) eember 29, 1924

In e maer of e e5ae e5ae of Anonio /o8al,eea5e. *IL/ENA NA,J.&

*his is a proceedin! for the probate of the #ill of thedeceased ntonio 'o2al instituted b% his survivin!spouse, Filomena +a%ve. *he probate is opposed b%Aeona 'o2al and Auciana !uilar, sister and niece,respectivel%, of thedeceased.chanroblesvirtuala#librar%chanrobles virtualla# librar%

*he Court of First Instance of lba%, #hich tried thecase, overruled the ob2ections to the #ill, and ordered theprobate thereof, holdin! that the document in controvers%#as the last #ill and testament of ntonio 'o2al,executed in accordance #ith la#. From this 2ud!ment theopponents appeal, assi!nin! error to the decree of thecourt allo#in! the #ill to probate and overrulin! their

opposition.chanroblesvirtuala#librar%chanrobles virtualla# librar%

*he #ill in uestion, =xhibit , is composed of foursheets #ith #ritten matter on onl% side of each, that is,four pa!es #ritten on four sheets. *he four sides or pa!escontainin! #ritten matter are pa!ed >8a!. 1,> >8a!. /,>>8a!. ;,> >8a!. 0,> successivel%. =ach of the first t#osides or pa!es, #hich #as issued, #as si!ned b% thetestator and the three #itnesses on the mar!in, left side ofthe reader. On the third pa!e actuall% used, the si!naturesof the three #itnesses appear also on the mar!in, left sideof the reader, but the si!nature of the testator is not on themar!in, but about the middle of the pa!e, at the end of

the #ill and before the attestation clause. On the fourthpa!e, the si!natures of the #itnesses do not appear on themar!in, but at the bottom of the attestation clause, itbein! the si!nature of the testator that is on the mar!in,left side of thereader.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he defects attributed to the #ill are6chanrobles virtualla# librar%

( a) *he fact of not havin! been si!ned b% the testator andthe #itnesses on each and ever% sheet on the left mar!in

( ) the fact of the sheets of the document not bein!pa!ed #ith letters ( c) the fact that the attestation clausedoes not state the number of sheets or pa!es actuall% usedof the #ill and (d) the fact that the testator does notappear to have si!ned all the sheets in the presence of thethree #itnesses, and the latter to have attested and si!nedall the sheets in the presence of the testator and of each

other.chanroblesvirtuala#librar%chanrobles virtual la#librar%

s to the si!natures on the mar!in, it is true, as abovestated, that the third pa!e actuall% used #as si!ned b% thetestator, not on the left mar!in, as it #as b% the #itnesses,but about the middle of the pa!e and the end of the #illand that the fourth pa!e #as si!ned b% the #itnesses, noton the left mar!in, as it #as b% the testator, but about themiddle of the pa!e and at the end of the attestationclause.chanroblesvirtuala#librar%chanrobles virtual la#librar%

In this respect the holdin! of this court in the caseofA"era "s. 0arcia and Rodri!uez (0/ 8hil., 10), isapplicable, #herein the #ill in uestion #as si!ned b% thetestator and the #itnesses, not on the left, but ri!ht,mar!in. *he rule laid do#n in that case is that thedocument contained the necessar% si!natures on eachpa!e, #hereb% each pa!e of the #ill #as authenticated

and safe!uarded a!ainst an% possible alteration. In thatcase, the validit% of the #ill #as sustained, andconseuentl% it #as allo#ed toprobate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

ppl%in! that doctrine to the instant case, #e hold that,as each and ever% pa!e used of the #ill bears thesi!natures of the testator and the #itnesses, the fact thatsaid si!natures do not all appear on the left mar!in ofeach pa!e does not detract from the validit% of the#ill.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*urnin! to the second defect alle!ed, that is to sa%, thefact that the sheets of the document are not pa!ed #ithletters, suffice it to cite the case of /nson "s. Aella(0;8hil., 090), #here this court held that pa!in! #ith rabicnumerals and not #ith letters, as in the case before us, is#ithin the spirit of the la# and is 2ust as valid as pa!in!#ith letters.chanroblesvirtuala#librar%chanrobles virtualla# librar%

12


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s to the proposition that the attestation clause does notstate the number of sheets or pa!es of the #ill, #hich isthe third defect assi!ned, it must be noted that the lastpara!raph of the #ill here in uestion and the attestationclause, comin! next to it, are of the follo#in! tenor6

In #itness #hereof, I set m% hand untothis #ill here in the to#n of Camali!,lba%, 8hilippine Islands, this /&th da% of+ovember, nineteen hundred and ei!hteen,composed of four sheets, includin! thenext6

+*O+IO'O$A

(Si!ned and declared b% the testator ?onntonio 'o2al to be his last #ill andtestament in the presence of each of us,and at the reuest of said testator ?onntonio 'o2al, #e si!ned this #ill in thepresence of each other and of the testator.)

8=?:OC:OSIA=:IO'O:CO

MOIAO'SI+S

chanrobles virtual la# librar%

s ma% be seen, the number of sheets is stated in said lastpara!raph of the #ill. It is true that in the case of /$

Co1ue "s. 2a"as *. Sioca(0; 8hil., 0), it #as held thatthe attestation clause must state the number of sheets orpa!es composin! the #ill but #hen, as in the case beforeus, such fact, #hile it is not stated in the attestationclause, appears at the end of the #ill proper, so that noproof aliundeis necessar% of the number of the sheets ofthe #ill, then there can be no doubt that it complies #ith

the intention of the la# that the number of sheets of#hich the #ill is composed be sho#n b% the documentitself, to prevent the number of the sheets of the #ill frombein! undul% increased ordecreased.chanroblesvirtuala#librar%chanrobles virtualla# librar%

ith re!ard to the last defect pointed out, namel%, thatthe testator does not appear to have si!ned on all thesheets of the #ill in the presence of the three #itnesses,and the latter to have attested and si!ned on all the sheetsin the presence of the testator and of each other, it mustbe noted that in the attestation clause above set out it issaid that the testator si!ned the #ill in the presence ofeach of the (itnessesand the latter si!ned in thepresence of each other and of the testator.So that, as to#hether the testator and the attestin! #itnesses sa# eachother si!n the #ill, such a reuirement #as clearl% andsufficientl% complied #ith. hat is not stated in thisclause is #hether the testator and the #itnesses si!ned allthe sheets of the#ill.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he act of the testator and the #itnesses seein!reciprocall% the si!nin! of the #ill is one #hich cannotbe proven b% the mere exhibition of the #ill unless it isstated in the document. nd this fact is expressl% statedin the attestation clause no# before us. 3ut the fact of thetestator and the #itnesses havin! si!ned allthe sheets ofthe #ill ma% be proven b% the mere examination of thedocument, althou!h it does not sa% an%thin! about this,and if that is the fact, as it is in the instant case, thedan!er of fraud in this respect, #hich is #hat the la# triesto avoid, does not

exist.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*herefore, as in the instant case the fact that the testatorand the #itnesses si!ned each and ever% pa!e of the #illis proven b% the mere examination of the si!natures inthe #ill, the omission to expressl% state such evident factdoes not invalidate the #ill nor prevent itsprobate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he order appealed from is affirmed #ith the costsa!ainst the appellants. Soordered.chanroblesvirtuala#librar%chanrobles virtualla# librar%

Johnson, Malcolm, and 3illamor, JJ., concur.chanroblesvirtual la# librar%

!E#N I$I!IN

6G.R. No. 1'00(. !e:ember 29, 1921. 7

In re will of e eea5e L+ina Anraa. LU#ILAAR#E,Petitioner-Appellant.

=. orao, =. Tirol, an =. ;onivero5 forAppellant.

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15/55

E # I ! I N

!TREET,J. &

In proceedin!s in the court belo#, instituted b% =utiuiavera for probate of the #ill of one =steban


16/55

the lo#er court, either at the hearin! or upon a motion fora ne# trial, that court #ould have had the po#er, and it#ould have been its dut%, considerin! the tard%institution of the contest, to have !ranted a ne# trial inorder that all the #itnesses to the #ill mi!ht be brou!htinto court. 3ut instead of thus callin! the error to theattention of the court and his adversar%, the point is first

raised b% the appellant in this court. e hold that this istoo late.

8roperl% understood, the case of Caban! v. ?elfinado,supra, contains nothin! inconsistent #ith the rulin! #eno# ma4e, for it appears from the opinion in that casethat the proponent of the #ill had obtained an order for arepublication and ne# trial for the avo#ed purpose ofpresentin! the t#o additional attestin! #itnesses #ho hadnot been previousl% examined, but neverthelesssubseuentl% failed #ithout an% apparent reason to ta4etheir testimon%. 3oth parties in that case #ere thereforefull% apprised at the uestion of the number of #itnessesnecessar% to prove the #ill #as in issue in the lo#er

court.

*he second point involved in this case is #hether, undersection &1 of the Code of Civil 8rocedure, as amendedb% ct +o. /&0, it is essential to the validi t% of a #ill inthis 2urisdiction that the names of the testator and theinstrumental #itnesses should be #ritten on the leftmar!in of each pa!e, as reuired in said ct, and notupon the ri!ht mar!in, as in the #ill no# before us andupon this #e are of the opinion that the #ill in uestion isvalid. It is true that the statute sa%s that the testator andthe instrumental #itnesses shall si!n their names on theleft mar!in of each and ever% pa!e and it is undeniablethat the !eneral doctrine is to the effect that all statutor%

reuirements as to the execution of #ills must be full%complied #ith. *he same doctrine is also deducible fromcases heretofore decided b% this court.

Still some details at times creep into le!islativeenactments #hich are so trivial that it #ould be absurd tosuppose that the Ae!islature could have attached an%decisive importance to them. *he provision to the effect

that the si!natures of the testator and #itnesses shall be#ritten on the left mar!in of each pa!e H rather than onthe ri!ht mar!in H seems to be of this character. So faras concerns the authentication of the #ill, and of ever%part thereof, it can ma4e no possible difference #hetherthe names appear on the left or no the ri!ht mar!in,provided the% are on one or the other. In Carai! v.

*atlon!hari (:. *he ob2ect of the solemnities surroundin! the executionof #ills is to close the door a!ainst bad faith and fraud, toavoid substitution of #ills and testaments and to!uarantee their truth and authenticit%. *herefore the la#son this sub2ect should be interpreted in such a #a% as to

attain these primordial ends. 3ut, on the other hand, alsoone must not lose si!ht of the fact that it is not the ob2ectof the la# to restrain and curtail the exercise of the ri!htto ma4e a #ill. So #hen an interpretation alread% !ivenassures such ends, an% other interpretation #hatsoever,that adds nothin! but demands more reuisites entirel%unnecessar%, useless and frustrative of the testators last#ill, must be disre!arded.>crala# virtua1a# librar%

In the case before us, #here in!enuit% could not su!!estan% possible pre2udice to an% person, as attendant uponthe actual deviation from the letter of the la#, suchdeviation must be considered too trivial to invalidate theinstrument.

It results that the l e!al errors assi!ned are not sustainable,and the 2ud!ment appealed from #ill be affirmed. It is soordered, #ith costs a!ainst the appellants.

$ohnson, raullo, vanceBa and illamor,JJ., concur.

EN "AN#

6G.R. No. L-14322. *ebr+ar 2), 19'0.7

In e maer of e TE!TATE E!TATE ofETRNILA TA/


17/55

!?e las pruebas resulta ue 8etronila *ampo%, %a viuda %sin hi2os, ro!P a 3onifacio 'iBo5a ue la le%era el

testamento =xhibito % la explicara su contenido en sucasa en la calle San 'i!uel, del municipio de r!ao,provincia de CebQ, en 19 de noviembre de 19;9, % asi lohi5o 3onifacio 'iBo5a en presencia de los tres testi!osinstrumentales, :osario G. Chan, 'auricio de la 8eBa %Simeona Ombo%, % despuRs de conformarse con elcontendido del testamento, ella ro!P a 3onifacio 'iBo5a,

ue escribiera su nombre al pie del testamento, en lapa!ina se!unda, % asi lo hi5o 3onifacio 'iBo5a, %despuRs ella estampP su marca di!ital entra su nombre %apellido en presencia de todos % cada uno de los trestesti!os instrumentales, :osario G. Chan, 'auricio da la8eBa % Simeon Ombo% % de 3onifacio 'iBo5a, %despuRs, 3onifacio 'iBo5a firmP tambiRn al pie deltestamento, en la pa!ina /, en presencia de la testadora %da todos % cada uno de los tres testi!os arriba nombrados.Aa testadora asi como 3onifacio 'iBo5a no firmaron, sinembar!o, en la mar!en i5uierda ni en nin!una parte dela primera pa!ina del testamento ue se halla compuestode dos pa!inas. *odos % cada uno de los tres testi!osinstrumentales, :osario G. Chan, 'auricio de la 8eBa %

Simeon Ombo%, firmaron al pie de la clausula deatesti!uamiento ue esta escrita en la pa!ina se!unda deltestamento % en la mar!en i5uierda de la misma pa!ina/ % de la pa!ina primera en presencia de la testadora, de3onifacio 'iBo5a, del abo!ado Gintanar % de todos %cada uno de ellos. =l testamento fuR otor!ado por latestadora libre % expontaneamente. sin haber sidoamena5ada, for5ada o intimidada, % sin haberse e2ercidosobre ella influencia indebida, estando la misma en plenouso de sus facultades mentales % disfrutando de buenasalud. Aa testadora falleciP en su casa en r!ao en // defebrero de 197 (Rase certificado de defunciPn =xhibito3). Aa heredera instituida en el testamento, Carmanlberastine, muriP dos semanas despuRs ue la testadora,

o sea en 7 de 'ar5o de 197, de2ando a su madre, lasolicitante ?iosdada lberastine.>crala# virtua1a#librar%

*he above facts are not controverted, there bein! noopposition to the probate of the #ill. Ko#ever, the trialcourt denied the petition on the !round that the first pa!eof the #ill does not bear the thumbmar4 of the testatrix.

8etitioner no# pra%s that this rulin! be set aside for thereason that, althou!h the first pa!e of the #ill does notbear the thumbmar4 of the testatrix, the same ho#everexpresses her true intention to !ive the propert% to her#hose claims remains undisputed. She #ishes toemphasi5e that no one has filed an% opposition to theprobate of the #ill and that #hile the first pa!e does not

bear the thumbmar4 of the testatrix, the second ho#everbears her thumbmar4 and both pa!es #ere si!ned b% thethree testimonial #itnesses. 'oreover, despite the factthat the petition for probate is unopposed, the threetestimonial #itnesses testified and manifested to the courtthat the document expresses the true and voluntar% #ill ofthe deceased.

*his contention cannot be sustained as it runs counter tothe express provision of the la#. *hus, Section &1 of ct19, as amended, reuires that the testator si!n the #illand each and ever% pa!e thereof in the presence of the#itnesses, and that the latter si!n the #ill and each andever% pa!e thereof in the presence of the testator and of

each other, #hich reuirement should be expressed in theattestation clause. *his reuirement is mandator%, forfailure to compl% #ith it is fatal to the validit% of the #ill(:odri!ue5 v. lcala, 8hil., 1). *hus, it has beenheld that >Statutes prescribin! the formalities to beobserved in the execution of #ills are ver% strictl%construed. s stated in 0 C%c., at pa!e 197, #illmust be executed in accordance #ith the statutor%reuirements other#ise it is entirel% void. ll thesereuirements stand as of eual importance and must beobserved, and courts cannot suppl% the defectiveexecution of a #ill. +o po#er or discretion is vested inthem, either to superadd other conditions or dispense #iththose enumerated in the statutes> (@% Coue v. +avas A.

Sioca, 0; 8hil., 0, 07 See also SaBo v. uintana, 08hil., &


18/55

that the same fails to compl% #ith the la# and therefore,cannot be admitted to probate.

herefore, the order appealed from is affirmed, #ithoutpronouncement as to costs.

8aras, C.J., 3en!5on, 8adilla, 'ontema%or, Aabrador

ConcepciPn, :e%es, $. 3. A. =ndencia, 3arrera andalamea Abella, eea5e.ER UN!N,petitioner-appellee, vs. ANTNIA"ELLA, ET AL.,opponents-appellants.

Crispin en for appellants.

Pedro 0ue"arra and Carlos *edesma for appellee.

$ILLA/R,J.&

On $ul% 19, 191, ?oBa $osefa Malamea % bella, sin!le,& %ears old, #ho #as residin! in the municipalit% of8a!san2an, 8rovince of Aa!una, executed her last #ill andtestament #ith an attached inventor% of her properties,=xhibits and -1, in the presence of three #itnesses,#ho si!ned #ith her all the pa!es of said documents. *hetestatrix died on the &th of $anuar%, 19/1, and, as therecord sho#s, the executor appointed in the #ill, 8edro@nson, filed in the court of First Instance of Aa!una on

the 19th of $anuar% of the same %ear an application forthe probate of the #ill and the issuance of the properletters of administration in hisfavor.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*o said application an opposition #as presentl% b%ntonio bella, I!nacia bella, vicencia bella, andSantia!o ito, alle!in! that the supposed #ill of thedeceased Malamea #as not executed in conformit% #iththe provinces of the la#, inasmuch as it #as not pa!edcorrelativel% in letters, nor #as there an% attestation

clause in it, nor #as it si!ned b% the testatrix and the#itnesses in the presence of eachother.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*rial havin! been held, the 2ud!e a uo overruled theopposition of the contestants, and ordered the probate ofthe #ill, =xhibit , and the inventor%, =xhibit -1,holdin! that both documents contained the true and last#ill of the deceased $osefaMalamea.chanroblesvirtuala#librar%chanrobles virtualla# librar%

From the 2ud!ment of the court belo#, the contestantshave appealed, and in their brief the% assi!n three errors,#hich, in their opinion, 2ustif% the reversal of the2ud!ment appealedfrom.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he first error assi!ned b% the appellants as committedb% the court belo# is its findin! to the effect that =xhibit, said to be the #ill of the deceased $osefa Malamea,#as executed #ith all the solemnities reuired b% the

la#.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he ar!uments advanced b% appellants" counsel insupport of the first assi!nment of error tend to impeachthe credibilit% of the #itnesses for the proponent,speciall% that of =u!enio Malamea. e have made a

careful examination of the evidence, but have not foundan%thin! that #ould 2ustif% us in disturbin! the findin! ofthe court a 1uo. *he attestin! #itnesses, =u!enioMalamea and


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ba%a, and b% attorne% Auis ba%a, #ho had preparedthe testament at the instance of the testatrix. *hefore!oin! is sufficient for us to conclude that the firstassi!nment of error made b% the appellants is!roundless.chanroblesvirtuala#librar%chanrobles virtualla# librar%

*he appellants contend that the court belo# erred inadmittin! the #ill to probate not#ithstandin! theomission of the proponent to produce one of the attestin!#itnesses.chanroblesvirtuala#librar%chanrobles virtualla# librar%

t the trial of this case the attorne%s for the proponentstated to the court that the% had necessaril% to omit thetestimon% of 8edro de $esus, one of the persons #hoappear to have #itnessed the execution of the #ill, forthere #ere reasonable !rounds to believe that said

#itness #as openl% hostile to the proponent, inasmuch assince the announcement of the trial of the petition for theprobate of the #ill, said #itness has been in freuentcommunication #ith the contestants and their attorne%,and has refused to hold an% conference #ith the attorne%sfor the proponent. In repl% to this, the attorne% for thecontestants, said to the court, >#ithout discussin! for thepresent #hether or not in vie# of those facts (the factsmentioned b% the attorne%s for the petitioner), in theh%pothesis that the same are proven, the% are relievedfrom producin! that #itness, for #hile it is a matter notdecided, it is a reco!ni5ed rule that the fact that a #itnessis hostile does not 2ustif% a part% to omit his testimon%#ithout discussin! this, I sa%, I move that said statementbe stric4en out, and if the proponent #ants these facts tostand to stand in the record, let him prove them.> *hecourt a 1uo ruled, sa%in!, >there is no need.> chanroblesvirtual la# librar%

*o this rulin! of the court, the attorne% for the appellantsdid not ta4e an%exception.chanroblesvirtuala#librar%chanrobles virtualla# librar%

In the case ofA"era "s. 0arcia and Rodri!uez(0/ 8hil.,

10), recentl% decided b% this court, in decidin! theuestion #hether a #ill can be admitted to probate, #hereopposition is made, upon the proof of a sin!le attestin!#itness, #ithout producin! or accountin! for the absenceof the other t#o, it #as said >#hile it is undoubtedl% truethat an uncontested #ill ma% be proved b% the testimon%of onl% one of the three attestin! #itnesses, neverthelessin Caan! "s. +elfinado(;0 8hil., /91), this courtdeclared after an elaborate examination of the mericanand =n!lish authorities that #hen a contest is instituted,all of the attestin! #itnesses must be examined, if aliveand #ithin reach of the process of the court.

In the present case no explanation #as made at the trialas to #h% all three of the attestin! #itnesses #ere notproduced, but the probable reason is found in the factthat, althou!h the petition for the probate of this #ill hadbeen pendin! from ?ecember /1, 1917, until the date setfor the hearin!, #hich #as pril , 1919, no formalcontest #as entered until the ver% da% set for the hearin!and it is probable that the attorne% for the proponent,believin! in !ood faith that probate #ould not becontested, repaired to the court #ith onl% one of the threeattestin! #itnesses at hand, and upon findin! that the #ill#as contested, incautiousl% permitted the case to !o toproof #ithout as4in! for a postponement of the trial inorder that he mi!ht produce all the attestin!#itnesses.chanroblesvirtuala#librar%chanrobles virtualla# librar%

lthou!h this circumstance ma% explain #h% the three#itnesses #ere not produced, it does not in itself suppl%an% basis for chan!in! the rule expounded in the caseabove referred to and #ere it not for a fact no# to bementioned, this court #ould probabl% be compelled toreverse this case on the !round that the execution of the

#ill had not been proved b% a sufficient number ofattestin! #itnesses.chanroblesvirtuala#librar%chanroblesvirtual la# librar%

It appears, ho#ever, that this point #as not raised b% theappellant in the lo#er court either upon the submission ofthe cause for determination in that court or upon theoccasion of the filin! of the motion for a ne# trial.ccordin!l% it is insisted for the appellee that thisuestion cannot no# be raised for t he first time in thiscourt. e believe this point is #ell ta4en, and the firstassi!nment of error must be declared not to be #ell ta4en.

*his exact uestion has been decided b% the SupremeCourt of California adversel% to the contention of theappellant, and #e see no reason #h% the same rule ofpractice should not be observed b% us. (=state of'cCart%, Cal., ;;, ;;7.) chanrobles virtual la#librar%

*here are at least t#o reasons #h% the appellate tribunalsare disinclined to permit certain uestions to be raised forthe first time in the second instance. In the first place iteliminates the 2udicial criterion of the Court of FirstInstance upon the point there presented and ma4es theappellate court in effect a court of first instance #ithreference to that point, unless the case is remanded for ane# trial. In the second place, it permits, if it does notencoura!e, attorne%s to trifle #ith the administration of2ustice b% concealin! from the trial court and from theiropponent the actual point upon #hich reliance is placed,#hile the% are en!a!ed in other discussions more

19


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simulated than real. *hese considerations are, #e thin4,decisive.chanroblesvirtuala#librar%chanrobles virtualla# librar%

In rulin! upon the point above presented #e do not #ishto be understood as la%in! do#n an% hard and fast rule

that #ould prove an embarrassment to this court in theadministration of 2ustice in the future. In one #a% oranother #e are constantl% here considerin! aspects ofcases and appl%in! doctrines #hich have escaped theattention of all persons concerned in the liti!ation belo#and this is necessar% if this court is to contribute the partdue from it in the correct decision of the cases brou!htbefore it. hat #e mean to declare is that #hen #ebelieve that substantial 2ustice has been done in the Courtof First Instance, and the point relied on for reversal inthis court appears to be one #hich ou!ht properl% to havebeen presented in that court, #e #ill in the exercise of a

sound discretion i!nore such uestion upon appeal andthis is the more proper #hen the uestion relates to adefect #hich mi!ht have been cured in the Court of FirstInstance if attention had been called to it there. In thepresent case, if the appellant had raised this uestion inthe lo#er court, either at the hearin! or upon a motion fora ne# trial, that court #ould have had the po#er, and it#ould have been its dut%, considerin! the tard%institution of the contest, to have !ranted a ne# trial inorder that all the #itnesses to the #ill mi!ht be brou!htinto court. 3ut instead of thus callin! the error to theattention of the court and his adversar%, the point is firstraised b% the appellant in this court. e hold that this is

too late.chanroblesvirtuala#librar%chanrobles virtual la#librar%

8roperl% understood, the case of Caan! "s. +elfinado,supra, contains nothin! inconsistent #ith the rulin! #eno# ma4e, for it appears from the opinion in that case

that the proponent of the #ill had obtained an order for arepublication and ne# trial for the avo#ed purpose ofpresentin! the t#o additional attestin! #itnesses #ho hadnot been previousl% examined, but neverthelesssubseuentl% failed #ithout an% apparent reason to ta4etheir testimon%. 3oth parties in that case #ere therefore

full% apprised that the uestion of the number of#itnesses necessar to prove the #ill #as in issue in thelo#er court.

In the case at bar, #e do not thin4 this uestion properl%to have been raised at the trial, but in the memorandumsubmitted b% the attorne% for the appellants to the trialcourt, he contended that the #ill could not be admitted toprobate because one of the #itnesses to the #ill #as notproduced, and that the voluntar% non-production of this#itness raises a presumption a!ainst the pretension of theproponent. *he trial court found that the evidence

introduced b% the proponent, consistin! of the testimon%of the t#o attestin! #itnesses and the other #itness #ho#as present at the execution, and had char!e of thepreparation of the #ill and the inventor%, =xhibits and-1, #as sufficient. s announced in Caan! "s.+elfinado, supra, the !eneral rule is that, #hereopposition is made to the probate of a #ill, the attestin!#itnesses must be produced. 3ut there are exceptions tothis rule, for instance, #hen a #itness is dead, or cannotbe served #ith process of the court, or his reputation fortruth has been uestioned or he appears hostile to thecause of the proponent. In such cases, the #ill ma% beadmitted to probate #ithout the testimon% of said

#itness, if, upon the other proofs adduced in the case, thecourt is satisfied that the #ill has been dul% executed.herefore, #e find that the non-production of theattestin! #itness, 8edro de $esus, as accounted for b% theattorne% for the proponent at the trial, does not rendervoid the decree of the court a 1uo, allo#in! the

probate.chanroblesvirtuala#librar%chanrobles virtual la#librar%

3ut supposin! that said #itness, #hen cited, had testifiedadversel% to the application, this #ould not b% itself havechan!e the result reached b% the court a 1uo, for section

&;/ of the Code of Civil 8rocedure provides that a #illcan be admitted to probate, not#ithstandin! that one ormore #itnesses do not remember havin! attested it,provided the court is satisfied upon the evidence adducedthat the #ill has been executed and si!ned in the mannerprescribed b% thela#.chanroblesvirtuala#librar%chanrobles virtual la#librar%

*he last error assi!ned b% the appellants is made toconsist in the probate of the inventor%, =xhibit -1,despite the fact that this exhibit has no attestation clause

in it, and its pa!in! is made in rabic numerals and not inletters.chanroblesvirtuala#librar%chanrobles virtual la#librar%

In the third para!raph of the #ill, reference is made to theinventor%, =xhibit -1, and at the bottom of said #ill, thetestatrix $osefa Malamea sa%s6

In #itness #hereof, I si!n this #ill composed of tenfolios includin! the pa!e containin! the si!natures andthe attestation of the #itnesses I have li4e#ise si!ned theinventor% attached to this #ill composed of ten folios in

the presence of 'essrs.


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*he fore!oin! #ill composed of ten folios includin! thisone #hereunto #e have affixed our si!natures, as #ell asthe inventor% of the properties of ?oBa $osefa Malamea %bella, #as read to ?oBa $osefa Malamea % bella, andthe latter affixed her name to the last, and each and ever%pa!e of this #ill and inventor% composed of ten folios in

our presence and she declared this to be her last #ill andtestament and at her reuest #e have affixed hereunto ourrespective si!natures in her presence and in the presenceof each other as #itnesses to the #ill and the inventor%this 19th o f $ul%, 191, at 8a!san2an, Aa!una, 8.I.

(S!d.)


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thereof, it can ma4e no possible difference #hether thenames appear on the left or on the ri!ht mar!in, providedthe% are on one or the other. In Crai! vs. *atlon!hari (


23/55

(S!d.) C=F=:I+O A?3.5itness.

In realit%, it appears that it is the testatrix #ho ma4es thedeclaration about the points contained in the abovedescribed para!raph ho#ever, as the #itnesses, to!ether

#ith the testatrix, have si!ned the said declaration, #e areof the opinion and so hold that the #ords above uoted ofthe testament constitute a sufficient compliance #ith thereuirements of section 1 of ct +o. /&0 #hichprovides that6

*he attestation shall state the number of sheets or pa!esused, upon #hich the #ill is #ritten, and the fact that thetestator si!ned the #ill and ever% pa!e thereof, or causedsome other person to #rite his name, under his expressdirection, in the presence of three #itnesses, and thelatter #itnessed and si!ned the #ill and all the pa!es

thereof in the presence of the testator and of each other.

In re!ard to the other assi!nment of error, to #it, thateach of the folios of the said testament is not pa!edcorrelativel% in letters >one.> >t#o,> >three,> etc., but onl%#ith the letters , 3, C, etc., #e are of the opinion thatthis method of indicatin! the pa!in! of the testament is acompliance #ith the spirit of the la#, since either one ofthe t#o #a%s above-mentioned indicates the correlationof the pa!es and serves to prevent the loss of an% ofthem. It mi!ht be said that the ob2ect of the la# inreuirin! that the pa!in! be made in letters is to ma4efalsification more difficult, but it should be noted thatsince all the pa!es of the testament are si!ned at themar!in b% the testatrix and the #itnesses, the difficult% offor!in! the si!natures in either case remains the same. Inother #ords the more or less de!ree of facilit% to imitatethe #ritin! of the letters , 3, C, etc., does not ma4e forthe easiness to for!e the si!nature. nd as in the present

case there exists the !uarant% of the authenticit% of thetestament, consistin! in the si!natures on the left mar!in!of the testament and the pa!in! thereof as declared in theattestation clause, the holdin! of this court in ban!anvs. ban!an (0 8hil, 07&), mi!ht as #ell be repeated6

*he ob2ect of the solemnities surroundin! the executionof #ills is to close the door a!ainst bad faith and fraud, toavoid substitution of #ills and testaments and to!uarantee their truth and authenticit%. *herefore the la#son this sub2ect should be interpreted in such a #a% as toattain these primordial ends. 3ut, on the other hand, alsoone must not lose si!ht of the fact that it is not the ob2ectof the la# to restrain and curtail the exercise of the ri!htto ma4e a #ill. So #hen an interpretation alread% !ivenassures such ends, an% other interpretation #hatsoever,that adds nothin! but demands more reuisites entirel%unnecesar%, useless, and frustrative of the testator"s last#ill, must be disre!arded.

In that case the testament #as #ritten on one pa!e, andthe attestation clause on another. +either one of thesepa!es #as numbered in an% #a% and it #as held6

In a #ill consistin! of t#o sheets the first of #hichcontains all the testamentar% dispositions and is si!ned atthe bottom b% the testator and three #itnesses and thesecond contains onl% the attestation clause and is si!nedalso at the bottom b% the three #itnesses, it is notnecessar% that both sheets be further si!ned on theirmar!in!s b% the testator and the #itnesses, or be pa!ed.

*his means that, accordin! to the particular case, theomission of pa!in! does not necessaril% render thetestament invalid.chanroblesvirtuala#librar%chanroblesvirtual la# librar%

*he la# provides that the numberin! of the pa!es shouldbe in letters placed on the upper part of the sheet, but ifthe pa!in! should be place din the lo#er part, #ould thetestament be void for his sole reasonJ e believe not.*he la# also provides that the testator and the #itnessesmust si!n the left mar!in of each of the sheets of the

testament but if the% should si!n on the ri!ht mar!in,#ould this fact also annul the testamentJ =videntl% not.*his court has alread% held inA"era "s. 0arcia andRodri!uez (0/ 8hil., 10)6

It is true that the statute sa%s that the testator and theinstrumental #itnesses shall si!n their names on the leftmar!in of each and ever% pa!e and it is undeniable thatthe !eneral doctrine is to the effect that all statutor%reuirements as to the execution of #ills must be full%complied #ith. *he same doctrine is also deducible fromcases heretofore decided b% this court chanrobles virtualla# librar%

Still some details at times creep into le!islativeenactments #hich are so trivial that it #ould be absurd tosuppose that the Ae!islature could have attached an%decisive importance to them. *he provision to the effectthat the si!natures of the testator and #itnesses shall be#ritten on the left mar!in of each pa!e - rather than onthe ri!ht mar!in - seems to be of this character. So far asconcerns the authentication of the #ill, and of ever% partthereof, it can ma4e no possible different #hether thenames appear on the left or on the ri!ht mar!in, providedthe% are on one or the other. In Carai! "s. Tatlon!hari (:.


24/55

but not on the mar!in of each pa!e containin! #rittenmatter.

e do not desire to intimate that the numberin! in lettersis a reuisite of no importance. 3ut since its principalob2ect is to !ive the correlation of the pa!es, #e hold that

this ob2ect ma% be attained b% #ritin! >one.> >t#o,>>three,> etc., #ell as b% #ritin! , 3, C, etc. Follo#in!,therefore, the vie# maintained b% this court in the caseofAan!an "s. Aan!an, supra, as re!ards theappreciation of the solemnities of a testament, #e decidethat the 2ud!ment appealed from must be, as is hereb%,affirmed #ith costs a!ainst the appellant. So ordered.

Araullo, C.J., Malcolm, A"ance4a, strand and

Romualdez, JJ., concur.

T;IR I$I!IN

6G.R. No. ))134. eember 4, 199).7

ER ILAIL an TERI#AENARANA,Petitioners, v. ;NRA"LE #URT* AEAL!, !:o+5e5 #AR/EN TARA anLUI! NA!IA!, $ITALIANA TARA, !:o+5e5NA#ARI "EN!IG an NAR#ELA ALIG@A


25/55

On $ul% 1, 197/, Carmen and Auis 'asias sold 7;0-3-- to K. Serafica L Sons Corporation, 1 #hich #as notable to re!ister the same because of the annotation in*C* +o. 91; earlier made sho#in! the sale in favor ofpetitioners. 3ecause of this, the corporation char!ed thevendors #ith estafa before the Cit% Fiscals Office, but

the complaint did not prosper.

8etitioners therefore filed, on ?ecember , 197;, acomplaint for uietin! of title, annulment of deeds,cancellation of titles, partition, and recover% ofo#nership #ith dama!es, a!ainst herein privaterespondents. *he complaint alle!ed, amon! other thin!s,that petitioners succeeded in possessin! onl% 1/,suare meters of the lot and needed &,&/& suare metersmore to complete the total area purchased from italianaand !aton in 19&/.

In its decision dated $une /, 1990, the court a uoconcluded that the annotation on *C* +o. 000 of the

sale b% italiana and !aton in favor of petitioners #asnull and void because the latter failed to surrender theo#ners duplicate cop% of the title, in violation of Section of the Aand :e!istration ct (ct +o. 09&). 1& Itstates62!c6chanrobles.com.ph

>K=:=FO:=, decision is hereb% rendered in favor ofthe defendants and a!ainst the plaintiffs hereb%dismissin! plaintiffs complaint, and orderin! theplaintiffs to pa% the defendants at the rate of 81,.for each counsel for and as attorne%s fees, to vacate Aot+o. 7;0-3--, and deliver the same to defendant K.Serafica L Sons Corporation, and further orderin! theplaintiffs and defendants spouses Auis 'asias andCarmen Otadora to 2ointl% and severall% pa% K. SeraficaL Sons Corporation actual dama!es at the rate of81,/7. a %ear from $ul% 1, 197/, until said land shallhave been delivered to K. Serafica L Sons Corporationall of #hich amounts shall bear le!al rate of interest fromthe filin! of the complaint until paid, #ith costs a!ainstthe plaintiffs.>crala# virtua1a# l ibrar%

On appeal, the appellate court made the follo#in!findin!s62!c6chanrobles.com.ph

>. . . . Ko#ever, it is clear from the documents presented,particularl% =xhibit C, that the certificate of titlementioned therein as coverin! the land at the time of thesale #as Ori!inal Certificate of *itle +o. /&/&. 3ut it

appears from OC* +o. /&/& that the o#ners thereof#ere Felix Otadora and Aeona


26/55

fter examinin! the records of the case, as #ell as theapplicable la# and 2urisprudence, the Court is convincedof the merits of the petition.

*he court belo# correctl% ruled that the annotation of=ntr% +o. 19; in the certificates of title #as not made

in accordance #ith la#. *o affect the land sold, thepresentation of the deed of sale and its entr% in the da%boo4 must be done #ith the surrender of the o#nersduplicate of the certificate of title. 17 8roduction of theo#ners duplicate of the certificate of title is reuired b%Section of ct +o. 09& (no# Section ; of8residential ?ecree +o. 1/9), and onl% after compliance#ith this and other reuirements shall actual re!istrationretroact to the date of entr% in the da% boo4. 1

Ko#ever, nonproduction of the o#ners duplicate of thecertificate of title ma% not invalidate petitioners claim ofo#nership over the lot involved considerin! the factualcircumstances of this case.

It is undisputed that after the sale of the lot to petitioners,the same vendors sold the same propert% to persons #hocannot be considered in la# to be una#are of the priorsale to the petitioners.

*hus, !aton sold his one-fourth share of the lot to hisdau!hter Carmen, #hile italiana also sold her one-fourth share to her sister 'axima. Considerin! theserelationships and contrar% to the findin!s of the courtsbelo#, the vendees, Carmen and 'axima, cannot beconsidered as third parties #ho are not bound b% the priorsale bet#een !aton and italiana as vendors andpetitioners as vendees, because there is privit% ofbet#een them and their predecessors. 19 *he reason forthat the validit% of a title to a piece of propert% dependson the bu%ers 4no#led!e, actual or constructive, of aprior sale. / hile there is no direct proof that Carmenand 'axima 4ne# of the sale to petitioners, the% aredeemed constructive 4no#led!e thereof b% virtue of theirrelation both !aton and italiana.

Kence, it has become immaterial if the sale to pet #asproperl% annotated on the correct certificate of not. s #eheld in bu%o v. ?e Sua5o6 /1

UtVhe purpose of the re!istration is to !ive notice to thirdperson. nd, privies are not third person. *he vendorsheirs are his vitiate or annul the vendees ri!ht of

o#nership conferred b% such unre!istered deed of sale.

It is not disputed that of the /,1 suare meter #hichpertain to italiana and !aton as their combinedundivided share in Aot +o. 7;0-3-, an area of 1,&/&suare meters had been sold to petitioners #ho, in turn,#ere able to possess onl% 1/, suare meters thereof.*hus, at most, italiana and !aton had a remainder of&,0 suare meters of undivided share #hich the% couldhave le!all% disposed of. s it turn out ho#ever, the%sold their entire individual one-fourth shares to Carmenand 'axima #ho, as earlier concluded, #ere priv% to theprior sale to petitioners.

*hus, #hen Carmen sold the propert% to K. Serafica andSons Corporation, she no lon!er had an% ri!hts ofdominion to transmit, since her o#n father #ho sold toher the propert% had himself earlier relinuished hiso#nership ri!hts in favor of the petitioners. ccordin!l%,Carmen transmitted no ri!ht to the corporation.

@nder these circumstances, the corporation, havin! failedto obtain relief throu!h the criminal complaint fileda!ainst the spouses Carmen Otadora and Auis 'asias,and havin! relied on the unencumbered transfercertificate of title sho#n to it b% the 'asias spouses, isentitled to dama!es of 81,/7. a %ear from $ul% 1,197/, #hich #as a#arded to it b% the trial court.+eedless to sa%, the corporation ma% file a case a!ainstthe assurance fund under Section 11 of the Aand:e!istration ct and Section 9 of 8?. +o. 1/9 but toobviate multiplicit% of suits, the a#ard of dama!es in itsfavor should no# be upheld.

s re!ards the sale made b% italiana to her sister'axima, the former can no lon!er transmit an% propert%

ri!hts over the sub2ect lot #hen she sold it to her o#nsister as she had previousl% sold the same propert% topetitioners. 'oreover as italianas sister, 'axima #asactuall% a co-o#ner of Aot +o. 7;0-3- #hich, at thetime of the sale to petitioners, #as not %et partitioned andse!re!ated. 'axima #as, therefore, priv% to the contract.s defined in 3asa v. !uilar, // a third person, #ithin

the meanin! of rticle 1&/ of the of the Civil Code (onthe ri!ht of le!al redemption of a co-o#ner) is an%one#ho is not a co-o#ner.

On the matter of #hether the ri!hts of co-o#ners hadbeen trans!ressed b% the sale to the petit ioners, the trialcourt erroneousl% ruled that there should be proof ofcompliance #ith rticle 1&/; of the Civil Code reuirin!the vendor of the propert% to !ive a #ritten notice of saleto the other co-o#ners. Said provision of la# had beenrendered inutile b% the fact that petitioners too4possession of the propert% immediatel% after theexecution of the deed of sale in their favor and continueto possess the same. Since the fact of possession b% the

petitioners had not been uestioned b% an% of the co-o#ners, the latter ma% be deemed to have 4no#led!e ofthe sale.

In vie# of the fore!oin!, the sale to the petitioners mustbe respected b% the successors-in-interest of !aton anditaliana. Inasmuch as petitioners had mana!ed topossess onl% 1/, suare meters of the 1,&/ suaremeters the% bou!ht from !aton and italiana, the #holearea purchased b% them should be ta4en from the sharesof !aton and italiana upon partition of the propert%.

K=:=FO:=, the appealed decision is hereb%:==:S=? and S=* SI?=. Conseuentl%, petitionersare declared the la#ful o#ners of 1,&/& suare metersof Aot 7;0-3-, #hich should be partitioned as pra%edfor, and the lot of petitioners ta4en in eual portions fromthe shares thereof of !aton and italiana or theirsuccessors-in-interest. *ransfer Certificates of *itle +os.91/9, 91;, 990, and 99& are hereb% declared null andvoid. 8rivate respondents spouses Auis 'asias andCarmen Otadora are also ordered to pa% actual dama!es

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to K. Serafica L Sons Corporation at the rate of81,/7. a %ear from $ul% 1, 197/. Costs a!ainstprivate respondents except K. Serafica Corporation.

SO O:?=:=?.

!E#N I$I!IN

6G.R. No. L-211)1. *ebr+ar 2), 1924. 7

In re will of Anonio $ergel e io5, eea5e.RA/N =. *ERNANE>, :eiioner-a::ellan,;ER/EL $ERGEL E I! an !E$ERINA=A$IER,Legatees-Appellants, v. *ERNAN$ERGEL E I! ET AL., o::onen5-a::ellee5.

=e5+5 am:o, Ree5 Im?on, #am+5 elgaoan Gibb5 /ono+g forAppellants.

E+5ebio ren5e an Anonio /. :i55o forAppellees.

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besides bein! stated in the attestation clause, that thetestator si!ned the #ill in the presence of the three#itnesses and that the latter, in turn, si!ned it in thepresence of the testator and of each other, the testator4no#in! that the #itnesses #ere si!nin! his #ill that the#itnesses si!ned the attestation clause before the death ofthe testator that this clause, #ith the names of the

#itnesses in blan4, #as prepared before the testatorsi!ned the #ill, and that the sheet containin! said clause,2ust as those of the #ill proper, #as a loose sheet, and thatall the four sheets of #hich the #ill =xhibit #asactuall% composed #ere 4ept to!ether and are the ver%ones presented in this case and finall%, that the si!naturesof the testator on pa!e ; of said exhibit are authentic.

It thus appearin! from the record that there are no suchdefects as those mentioned b% the opponents, and ithavin! been proven that the testator executed said #ill ina lan!ua!e 4no#n b% him and consciousl%, freel% andspontaneousl%, it #ould seem unnecessar% to !o further,and the matter mi!ht be brou!ht to a close ri!ht here, b%

holdin! the #ill in uestion valid and allo#able toprobate, #ere it not for the fact that the t rial court and theopponents uestioned the sufficienc% and validit% of theattestation clause because the sheet on #hich it is #rittenis not numbered, and it is not stated there that the testatorsi!ned on the mar!in of each sheet of the #ill in thepresence of the three #itnesses, or that the latter si!ned itin the presence of the testator and of each other, speciall%because said attestation clause is not si!ned b% thetestator either at the mar!in or the bottom thereof.

s to the numberin! of the sheet containin! theattestation clause, it is true that it does not appear on theupper part of the sheet, but it does appear in its text, thepertinent part of #hich is copied hereinafter, #ith the#ords, havin! reference to the number of sheets of the#ill, underscored, includin! the pa!e number of theattestation62!c6chanrobles.com.ph

>. . . e certif% that the fore!oin! document #ritten inSpanish, a lan!ua!e 4no#n b% the testator ntoninoer!el de ?ios, consistin! of three sheets actuall% used,

correlativel% enumerated, besides this sheet . . .>crala#virtua1a# librar%

If, as stated in this clause, the fore!oin! documentconsists of three sheets, besides that of the clause itself,#hich is in sin!ular, it is clear that such a sheet of theattestation clause is the fourth and that the #ill, includin!

said sheet, has four sheets. *his description contained inthe clause in uestion constitutes substantial compliance#ith the reuirements prescribed b% the la# re!ardin! thepa!in!. So it #as held b% this Court in the case ofban!an v. ban!an (0 8hil., 07&), #here the sheetcontainin! the attestation, as #ell as the precedin! one,#as also not pa!ed. Furthermore, the la#, as #e shall seelater on, does not reuire that the sheet containin!nothin! but the attestation clause, #holl% or in part, benumbered or pa!ed. Conseuentl% this lac4 of pa!in! onthe attestation sheet does not ta4e an%thin! from thevalidit% of the #ill.

*urnin! no# to the uestion #hether or not in this clause

it is stated the testator si!ned on the mar!in of each sheetof the #ill, in the presence of the #itnesses and the latterin the presence of each other, let us see #hat is said insaid clause on this point, and to this end its pertinent partis hereinafter transcribed and is asfollo#s62!c6chanroble

Atty Almazan Cases 2

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