[G.R. No. 2586. January 19, 1906. ]

TOMAS GUISON,Petitioner-Appellant, v. MARIA CONCEPCION,Respondent.

SYLLABUS1. WILLS; INABILITY TO SIGN; SIGNATURE BY ANOTHER. The testatrix was not able to sign her name to the will, and she requested another person to sign it for her. Instead of writing her name he wrote his own upon the will. Held, That the will was not duly executed. (Following Ex No. 2002, August 18, 1905.)

D E C I S I O N

WILLARD,J.:

Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the will is as follows:jgc:chanrobles.com.ph

"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix Polintan, de Manila, Islas Filipinas, y por no yo poder firmar, firma a mi ruego el mismo Feliciano Maglaqui, en mi presencia y de los mencionados testigos, quienes tambien suscriben, cada uno de ellos en presencia de los otros y la mia.

"(Firmado) FELICIANO MAGLAQUI.

"(Firmado) AMBROSIO REYES.

"(Firmado) MARIANO DE LEON.

"(Firmado) FELIX POLINTAN.

"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que Filiciano Maglaqui, a ruego de la Sra. Jacoba Concepcion Salcedo y en presencia de la misma y la nuestra, firmo el testamento que antecede; y que cada uno de nosotros lo firmo en presencia de los otros y de dicha testadora.

"Manila, tres de Enero de mil novecientos cuatro.

"(Firmado) AMBROSIO REYES.

"(Firmado) MARIANO DE LEON.

"(Firmado) FELIX POLINTAN."

("So gave it before the witnesses Mr Ambrosio Reyes, Mariano de Leon and Flix Polintan, Manila, Philippine Islands, and not I sign, signature to my request the same Feliciano Maglaqui, in my presence and witnesses mentioned above, who also signed, each of them in the presence of others and the mia." "(Signed) FELICIANO MAGLAQUI. "(Signed) Ambrose Kings. "(Signed) MARIANO DE LEON. "(Signed) FELIX POLINTAN. "We Ambrosio Reyes, Mariano de Leon and Flix Polintan, witnessed Filiciano Maglaqui, to plea for the Ms. Jacoba Concepcin Salcedo and in the presence of the same and we signed the Testament foregoing;" and so each one of us signed in the presence of others with such testadora. "Manila, three of January in the year one thousand nine hundred and four. "(Signed) Ambrose Kings. "(Signed) MARIANO DE LEON. "(Signed) FELIX POLINTAN." )

It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on the will, wrote his own. Probate of the will was refused in the court below on the ground that the name of the testatrix was not signed thereto, and the petitioner has appealed. The question presented has been decided adversely to the appellant in the following cases: Ex parte Pedro Arcenas Et. Al., 1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin Santiago, 2 No. 2002, August 18, 1905 (4 Off. Gaz., 507.)

The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the expiration of twenty days judgment should be entered in accordance herewith and the case remanded to the court below for execution. So ordered.

Arellano,C.J., Mapa, Johnson and Carson,JJ., concur.G.R. No. L-6285 February 15, 1912PEDRO BARUT,petitioner-appellant,vs.FAUSTINO CABACUNGAN, ET AL.,opponents-appellees.

MORELAND,J.:This case is closely connected with the case ofFaustino Cabacungan vs. Pedro Barutand another, No. 6284,1just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit.This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together.In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .This is the important part of the section under the terms of which the court holds that the person who signs the name of the testator for him must also sign his own name The remainder of the section reads:The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.From these provisions it is entirely clear that, with respect to thevalidityof the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to thevalidityof the will. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four.Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They areEx parteSantiago (4 Phil. Rep., 692),Ex parteArcenas (4 Phil. Rep., 700), and Guisonvs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. It says:The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will.Held, That the will was not duly executed.All of the above cases are precisely of this character. Every one of them was a case in which the person who signed the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name nowhere appeared attached to the will as the one who executed it. The case ofEx parteArcenas contains the following paragraph:Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this must be written by the witness signing at the request of the testator.The only question for decision in that case, as we have before stated, was presented by the fact that the person who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signedhis ownthereto. The decision in that case related only to that question.Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.Arellano, C.J., Mapa and Carson, JJ.,concur.

G.R. No. L-15153 August 31, 1960In the Matter of the summary settlement of the Estate of the deceasedANACLETA ABELLANA. LUCIO BALONAN,petitioner-appellee,vs.EUSEBIA ABELLANA, et al.,oppositors-appellants.

LABARADOR,J.:Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made:The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.In view of the fact that the appeal involves a question of law the said court has certified the case to us.The facts as found by the trial court are as follows:It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space.The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga',and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis supplied)The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed?The present law, Article 805 of the Civil Code, in part provides as follows:Every will, other than a holographic will, must besubscribedat the end thereof by the testator himself orby the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witness in the presence of the testator and of one another. (Emphasis supplied.)The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . . (Emphasis supplied).Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil., 700:It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner:John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the witness signing at the request of the testator.Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it.The same ruling was laid down in the case ofCuison vs. Concepcion, 5 Phil., 552. In the case ofBarut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import areas follows: (Ex ParteJuan Ondevilla, 13 Phil., 479, Caluyavs.Domingo, 27 Phil., 330; Garciavs.Lacuesta, 90 Phil., 489).In the case at bar the name of the testatrix, Anacleta Abellana,does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon, JJ.,concurG.R. No. L-4132 March 23, 1908In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA, Probate proceedings.

TRACEY,J.:In this special proceedings for the legalization of a will, the Court of First Instance refused probate on the ground that the instrument was not subscribed by the witnesses in the presence of the testatrix and of each other as required by section 618 of the Code of Civil Procedure.The testatrix was ill and confined to her house, the execution of the will taking place in the sala where she lay upon a sofa. The witnesses differ as to whether the testatrix from where she lay could read what was written at the table; and the first witness, after signing, went away from the table. These two circumstances do not impair the validity of the execution of the will. The witnesses being in the same apartment were all present and the statute does not exact that either they are the testator shall read what has been written. Had one of the witnesses left the room or placed himself so remotely therein as to be cut off from actual participation in the proceedings, then the subscription might not have taken place in his presence within the meaning of the law.A second objection is suggested on this appeal, that the signature to the instrument is defective. It ends in this form:At the request of Seora Maria Siason.CATALINO GEVA.T. SILVERIO. FRUCTUOSO G. MORIN.RAFAEL ESPINOS.Section 618 of the Code of Civil Procedure reads as follows:Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real of personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and each of the other. The attestation shall estate the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.The misunderstanding of this section arising from the incorrect rendering of into Spanish in the official translation was corrected by what was said in the decision of this court inEx parteArcenas (4 Phil. Rep., 700). Confusion has also come out of the different wording of the two clauses of this section, the one specifying the requisites of execution and the other those of the attestation clause. The concluding sentence of the section, however, makes clear that the former and not the latter is to control. Consequently the will must be signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction," and the question presented in this case is, Are the words "Seora Maria Siason" her name written by some other person? They undoubtedly are her name, but occurring as they do after the words "at request of," it is contended that they form a part of the recital and not a signature, the only signature being the names of the witnesses themselves. InGuison vs. Concepcion(5 Phil. Rep., 551) it was held that there was no signature, although the attestation clause which followed the will contained the name of the testatrix and was thereafter signed by the witnesses. The distinction between that case and the present one is one of the extreme nicety, and in the judgment of the writer of this opinion should not be attempted. The majority of the court, however, are of the opinion that the distinction is a tenable one inasmuch as in the Concepcion will the name of the testatrix occurred only in the body of the attestation clause, after the first signatures of the witnesses, whereas in this will it immediately follows the testament itself and precedes the names of the witnesses.In sustaining this form of signature, this court does not intend to qualify the decisions inEx parteSantiago (4 Phil. Rep., 692),Ex parteArcenas, above quoted, or inAbaya vs. Zalamero.1In the Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but did not mean to exclude any other form substantially equivalent.The decision of the court below is reversed, without costs, and that court is directed to admit the instrument before it to probate as the last will of the testatrix. So ordered.Arellano, C.J., Torres and Mapa, JJ.,concur.Willard, J.,concurs in the result.

G.R. No. L-5149 March 22, 1910GREGORIO MACAPINLAC,petitioner-appellee,vs.MARIANO ALIMURONG,opponent-appellant.

ARELLANO,C. J.:Simplicia de los Santos having died on June 19, 1907, her surviving husband, Gregorio Macapinlac, submitted her will to the Court of First Instance of Pampanga for probate. Macario Alimurong, a nephew of the deceased, opposed the proceedings and requested that "the will of the deceased, Doa Simplicia de los Santos, be declared null and void for either of the two reasons" which he expresses, and which are:(1) Because the will was not executed and signed by the witnesses in accordance with the provisions of the Code of Civil Procedure now in force.(2) Because it was executed under duress and undue and illegal influence on the part of the persons benefited thereby or of a person acting in their interests.The trial having been held and evidence adduced, the trial court declared the following facts to be proven:(1) That at 6 o' clock on the evening of June 17, 1907, Simplicia de los Santos, who was sick but in full possession of all her faculties, executed her will, which is the document attached to the record, Exhibit No. 1 of the petitioner.(2) That after the execution of such will on Monday, the testatrix died early on the morning of the following Wednesday.(3) That, as a preliminary act, a rough copy of the said will was made up, which rough copy was read to the testatrix, and the latter ordered an additional clause to be added thereto, in connection with a legacy that she desired to make in favor of some of her old servants who and rendered good service.(4) That, after the rough copy was amended by the addition of the above-mentioned clause, a clear copy thereof was made up and was again read to the testatrix, who approved it in all of its parts, and as she was unable to sign, she requested Amando de Ocampo to sign for her and the latter wrote the following words with his own hand. "At the request of the testatrix D.aSimplicia de los Santos, I signed Amando de Ocampo." Immediately afterwards and also in the presence of the same testatrux and of each other, the witnesses Jose Juico, Gabino Panopio, Eusebio dayao, Juan Angeles, Jose Torres, Alejo San Pedro, and Gregorio Sangil signed at the bottom of the will.In view of the said factsthe lower court concludesthe will executed by Simplicia de los Santos must be admitted to probate. The provisions of section 618 of the Code of Procedure in Civil Actions and Special Proceedings are fully complied with. The will bears the name of the testatrix written by Amando de Ocampo in her presence and by her express direction, and has been witnessed and signed by more than three trustworthy witnesses, in the presence of the testatrix and of each other.The judgment was as follows:It is ordered that exhibit No. 1, duly translated, be probated as the last will of Simplicia de los Santos and that the corresponding letters of administration be issued in favor of Gregorio Macapinlac, the surviving husband of the said Simplicia de los Santos, the protest of the adverse party being dismissed, with the costs.The opponent appealed, and the appeal having been submitted to this court, together with the allegations of both parties, it appears that the appellant has alleged the following assignments of error:1 That the proceedings were not dismissed, because the witnesses for the petitioner did not sign their respective testimony.2 That it was declared that the will of the deceased Simplicia de los Santos was executed with a legal formalities.3 That it was not declared that the will of the deceased Simplicia de los Santos was executed under undue and illegal influence on the part of the persons benefited thereby or of a person acting in their interests.With reference to the first assignment of error, inasmuch as no question was raised in the first instance in the form of a motion and denied by the court below and exception taken and brought up on appeal, there is no ground on which we may take into consideration such assignment and decide a matter not covered by the appeal and with reference to which a decision by this court is not properly sought.In regard to the second assignment, in view of the facts set forth and of the findings made by the trial court, according to the preponderance of the evidence, it can not be rationally shown that the conclusion should have been otherwise, nor does it appear that the conclusion infringes any statute or legal doctrine for the enforcement of which this court should review the evidence.But, besides the question of fact, the appellant submit another question of law, viz, whether or not the will was signed in accordance with the law, and he affirms that it was not, inasmuch as the law requires that when a person signs in place of the testator he should write the name of the latter in the will as the signature; this was not done by Amando de Ocampo in the will in question, as he did not sign it with the name of testatrix.It is shown by the evidence that the will was wholly written in the handwriting of the subscribing witness, Gregorio Sangil, and at the foot thereof the following words appear in a new paragraph and sufficiently apart:At the request of the testatrix, Da. Simplicia de los Santos, I signed. For Simplicia de los Santos. Amando de Ocampo.As a question of fact, the authenticity of the words "For Simplicia de los Santos," prefixed to the signature, is impugned as not having been written at the time of the execution of the will.And, as a question of law, it is claimed that the form of signing for the testatrix "At the request of the testatrix Da. Simplicio de los Santos, I signed: Amando de Ocampo," is not in accordance with the requirements of the law.Regarding the first question, the trial court concluded that "the posterior insertion of the words 'For Simplicia de los Santos' can not affect the validity of the will."Therefore, it can be considered as nonexistent, and the other as the only fore of signature by the testatrix, the authenticity of which has not been impugned or which the trial court admits as conclusive, and is only one taken into account in its findings of fact. Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act.With reference to the third assignment of error, the court below found:. . . and the influence which, according to the adverse party, was exercised upon the testatrix by Father Lupo is not shown. While the rough copy of the will was being made, Father Lupo simply discussed with those who were making the rough draft the question of the more appropriate use of some phrases inPampango. It is true that he went in and out of the room of the testatrix several times, and that from time to time he showed a relic to her, but there is no evidence to indicate that Father Lupo influenced the testatrix directly and caused her to be influenced in any way.Against this finding of fact, based upon the preponderance of the evidence as weighed by the trial court, we find no reason or ground for deciding this question of fact in any other way. We find no data showing that the person above mentioned directly influenced the provisions of the will; that such is the illegal and improper influence which the law condemns as overcoming that freedom by which the last will of a man must be expressed.The judgment appealed from is hereby affirmed, with the costs of this instance against the appellant. So ordered.Torres, Johnson, Carson and Moreland, JJ.,concur.G.R. No. L-3907 March 12, 1908ROMAN ABAYA,petitioner-appellant,vs.DONATA ZALAMERO,respondent-appellee

TORRES,J.:On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for the allowance of the will executed by Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th of October, 1905, and produced in court the said will, which was written in Tagalog dialect. Donata Zalamero opposed the petition, alleging that the will had been executed under pressure and unlawful and improper influence on the part of those who were to benefit thereby, and that it had not been executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure. A day was appointed for the hearing and in the course of the proceedings the witnesses offered by both parties were examined; on the 10th of January, 1907, the court refused to admit the will of said Juan Zalamero, as requested by Roman Abaya; Abaya appealed from the decision and moved for a new trial which motion has not been finally acted upon by the court; for this reason the petitioner, now before this court, still insists thereon for the effects of the appeal which he had interposed, and has submitted a certified copy of the proceedings to which the assignment of errors presented by him refers.Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th of October, 1905, under lawful pressure and influence exercised by those who were thereby benefited; and second, that the said will was not executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure.After an examination of the facts alleged and the evidence adduced by both parties, and considering the case according to the rules of common sense and sound criticism, it must necessarily be admitted that the weight and preponderance of the evidence prove in a conclusive manner the authenticity and genuineness of the said will as the real and true expression of the will of the testator, Juan Zalamero, and for this reason the first point should have been decided by the court below in a negative sense.It was not expressly pretended that the said will should be disallowed under the provisions of section 634 of the Code of Civil Procedure, either because the testator was insane or otherwise mentally incapable to execute such instrument at the time of its execution, or because it was procured by undue and improper pressure and influence on the part of the beneficiaries; nor even if such request had been made, could the nullity of the said will have been judicially declared in view of the lack of satisfactory proof of the presence of such circumstances. Therefore, the court, in order to disallow the petition, had to disregard them and rest the decision upon the allegation that the will was not executed in accordance with the provisions of section 618 of the Code of Civil Procedure.Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in question was executed with the requirements established by the law in force, and that, therefore, the decision upon the second point should be against the opponents to the petition.It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at his own request, one of the witnesses to the will, Mariano Zaguirre, wrote with his own hand the name and surname of Juan Zalamero, the testator, and his presence, and that the latter put a cross between them and a note stating that what had been written before the name and surname of the said Juan Zalamero, with the cross placed at the foot thereof, was his testament and contained his last will as stated by him when he directed the execution thereof in the presence of the three witnesses who subscribed it in his presence, and in the presence of each other.It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and surname at the end of his will, did not affix his own signature immediately below the name and surname of Juan Zalamero and below the cross placed by the latter with the words "by request of the testator Juan Zalamero;" but in the said will are clearly stated the reason why it was not signed by the testator himself as also the request he made to the witness Zaguirre, and a repetition thereof was not necessary; further, that this same witness, upon being requested, wrote with his own hand the name and surname of the testator, who afterwards placed the cross between them, stating that it was his statement, all of which was written immediately after the said name and surname of the testator and the cross made by him, and the same was subscribed by the three witnesses in the manner provided by law.The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with, namely, that three witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that they heard his statement that the said instrument, written and drawn up under his direction, contained his last will; that they saw and witnessed when, at the express request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote at the foot of the will the name and surname of Juan Zalamero, and when the latter put the cross between his written name and surname, each of the witnesses subscribing it at the time and in the presence of each other.For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be reversed and that it be declared, as we now do, that the will executed by the late Juan Zalamero while in life, under date of the 29th of October, 1905, was executed in accordance with the law, and that therefore it should be duly admitted in order that it may produce all consequent legal effects, and it is so ordered without any special ruling as to costs.Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ.,concur.

G.R. No. 1708 August 24, 1905EX PARTE PEDRO ARCENAS, FELISBERTA ACEVEDO, ET AL. Probate Proceedings.

TORRES,J.:On October 12, 1901, before Felipe Villasis y Castaeda, a notary public of the municipality of Capiz, and in the presence of three witnesses, residents thereof, Jose de los Santos e Isada, also a resident of that city, executed his last will and testament, and to this effect exhibited to the notary and attesting witnesses a private document purporting to be his last will, and stated that he wished to acknowledge it as such; but the said testator, on account of his ill health, did not sign the same, and at his own request the witness Naval Amisola Vidal y Reyes signed in his stead. The other witnesses and the notary public also signed the testament.Subsequently Pedro Arcenas, one of the executors under the said will, presented the same for probate, the usual proceedings were had in the Court of First Instance, and notwithstanding the fact that the parties interested were cited, no one appeared to oppose the probating of the said will. Sandalio Garcia and Andres Protasio, two of the witnesses to the will, were examined. They testified under oath that the testator had voluntarily executed the same but on account of his ill health did not sign, the witness Naval A. Vidal signing in his stead at the testator's request; they further testified that the attesting witnesses had signed the will in the presence of each other. At this stage of the proceedings the clerk presented to the judge the register of public instruments for the year 1901, where the original of the said will was recorded.The two heirs named in the will, to wit, Felisberta and Jose Acevedo, petitioned the court on the 28th day of September, 1902, to examine the notary Villasis, and the witness Naval Amisola Vidal as to the authenticity of the will itself, but the court, without passing upon this petition, in a decision rendered October 1, 1903, disallowed the said will on the ground that it was not signed by the testator Jose de los Santos, nor by the testator's name written by Naval A. Vidal, as required by section 618 of the Code of Civil Procedure, and could not, therefore, be considered as the last will and testament of the said Jose de los Santos. From this decision the said heirs appealed to this court.The Code of Civil Procedure went into effect on the 1st day of October, 1901, as provided, in Act No. 212 of the Philippine Commission, approved August 31, 1901, so that the said Code of Civil Procedure was in full force and effect on the 12th day of October of the same year when the will in question was executed by the testator, Jose de los Santos e Isada, who, as well as all the citizens of the Philippines Islands, was obliged to conform in the execution of wills with the law governing the subject.Section 618 of the Code of Civil Procedure, which relates to the requisites of will, repealed, among others article 695 of the Civil Code, the second paragraph of which reads as follows:Should the testator declare that he does not know how, or is not able, to sign, one of the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall also be done if any one of the witnesses can not sign.This provision of the Civil Code has been expressly modified by the provisions of section 618 of the Code of Civil Procedure, which reads as follows:No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.The foregoing is, in the opinion of the American members of this court, a correct translation of the English text of the section quoted.It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator, John Doe, Richard Roe." All this must be written by the witness signing at the request of the testator.The English text of the before-mentioned section 618 of the Code of Civil Procedure is clear, this section not having been modified since the promulgation of the said code, and if the Spanish translation of said code was incorrect in the first two editions it has at last been corrected in a third edition thereof, and, in our opinion, the correct Spanish translation of the said section is as quoted in this decision.There is lacking in the testament in question an essential requisite which affects its validity, the omission of which can not be excused by the erroneous translation in the first two editions of the said code, which translation is not such as would justify a failure to comply with its provisions, since Act No. 63 of the Philippine Commission, approved December 21, 1900, provides that in the construction of all acts which have been enacted, or shall be enacted, by that legislative body the English text shall govern, except that in obvious cases of ambiguity, omission, or mistake the Spanish text may be consulted to explain the English text. In this case the English text is clear and, in the opinion of the American members of this court, there is no ambiguity, omission, or mistake which would require a consultation of the Spanish text to explain it.Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it.The trail court states in its decision that from the evidence introduced the court is convince that the document in question contained the last will of the deceased as to the disposition of his property; but no decision in this case would be proper unless in strict accordance with the law, no matter how harsh such decision may be. The allowance of this defective will would be a violation of the law.The judgment appealed from should be affirmed and the will in question, executed at Capiz on the 12th of October, 1901, by the deceased, Jose de los Santas e Isada, is hereby disallowed. After the expiration of twenty days judgment shall be entered accordingly and the case remanded to the Court of First Instance for proceedings in conformity herewith. So ordered.Arellano, C.J., Mapa, Johnson and Carson, JJ.,concur.Willard, J.,did not sit in this case.G.R. No. L-4454 April 12, 1909Ex parte JUAN ONDEVILLA, ET AL.,petitioners-appellants.

MAPA,J.:These proceedings were instituted for the probate of the will of Pascuala Olaguer, deceased. The lower court refused the probate and from that decision the petitioners have appealed to this court.There is no doubt that the testament in question was executed before a sufficient number of witnesses. This was acknowledged to be true in the decision appealed from. The only matter at issue is the sufficiency of form in which the name of the testatrix appears at the foot of the will. The testatrix could not sign at the time she executed the will and requested one named Fructuoso Llenaresa to sign on her behalf, which the latter did by writing her name and signing at the foot of the document as follows:For Pascuala Olaguer,Fructuoso Llenaresa.The judge below was of the opinion that this manner of writing the name of the testatrix is not in accordance with the law, and this was his only reason for refusing the probate of the will, because, as he says, "it is always better that, where a testator can not sign his name, the person signing for him should only write the name of the testator, and that the latter should make a cross which should be witnessed and attested by the witnesses to the act."Section 618 of the Code of Procedure in Civil Actions, which prescribes the form of the execution of wills, provides in part as follows:No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other.As will be seen, the law does not prescribe the specific form in which the name of the testator should be affixed at the foot of the will when written at his request by another person. The only thing required by law is that the will shall be bear the name of the testator. In construing this legal provision this court has held and established in case No. 1708,Ex parte Pedro Arcenas et al.(4 Phil. Rep., 700), that "where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner:'John Doe, by the testator, Richard Roe;'or in this form:'By the testator, John Doe, Richard Roe.'"This last form is precisely the one which has been used in the will in question, with the exception of the wordsthe testatorwhich were omitted. It is unnecessary to say that such omission does not nor can it in anyway affect the validity of the will, because the essential thing is the name of the testator, which name, we hold, was duly written in the aforesaid will.The order appealed from is reversed, and the will is hereby declared valid and ordered admitted to probate. So ordered.Arellano, C. J., and Torres, J.,concur.G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA,petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent.

GUTIERREZ, JR.J.:This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix.Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion,ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.Meanwhile, the petitioner filed a motion for the appointment of special administrator.Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filedex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.The petitioner decided to file the present petition.For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses signat the endof the will and in the presence of the testatrix and of one another?Article 805 of the Civil Code provides:Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to them.The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place orat the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature.We find the petition meritorious.Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.It must be noted that the law uses the termsattestedandsubscribedAttestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification.The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code commission,p. 103).Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will.The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".InSingson v. Florentino, et al.(92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coquevs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarriavs. Sarmiento, 66 Phil. 611). Theratio decidendiof these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.Icasiano v. Icasiano(11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs.SO ORDERED.G.R. No. L-4202 March 9, 1909MAMERTO GILLESANIA, ET AL.,plaintiffs-appellants,vs.NICOLAS MENASALVAS, ET AL.,defendants-appellees.

Salas and Soncuya for appellants.Carlos Ledesma and Andres Jayme for appellees.JOHNSON,J.:On the 27th day of June, 1903, Graciano Fadrigon executed his last will and testament. On the 5th day of November, 1905, the said Fadrigon died. Later the said will was presented to the Court of First Instance of the Province of Antique for probate. The probation of the will was opposed by some of the relatives of the deceased. The opposition seems to be based upon two grounds:First. That the witnesses who signed the will did not all sign in the presence of the testator and in the presence of each other as required by section 618 of the Code of Procedure in Civil Actions; andSecond. That the said testator was mentally incapable of making said will at the time the same was authorized and made.In the month of November, 1906, the court heard the evidence pro and con offered upon the question whether the will should be admitted to probate or not. After hearing the evidence the lower court denied the probation of said will. From this decision of the lower court the petitioners appealed assigning the following errors:1. In holding that the will of Graciano Fadrigon was not executed in accordance with the provisions of section 618 of the Code of Civil Procedure, because one of the witnesses did not see the other five sign, and because some witnesses made contradictory statements with respect to facts which could not be unknown to the others.2. In holding that, on account of the lack of education on the part of Graciano Fadrigon, it is not credible that he could dictate the provisions contained in the will wherein the situation, extension, and boundaries are described, considering the size and number of said properties, without having before him the documents of ownership.3. In holding that the will executed by the late Graciano Fadrigon should not be admitted to probate.With reference to the first above assignment of error, an examination of the will shows that it was signed by six witnesses. Said section 618 only requires that wills be signed by three persons, in the presence of the testator and in the presence of each other. An examination of the evidence shows that each of the six persons who signed the said will were examined as witnesses and it appears, beyond peradventure of doubt, that five of the six witnesses signed the said will at the request of the testator, in the presence of the testator and in the presence of each other. It is true that one of the witnesses, Mateo Mena, who was the first witness to sign the will, immediately left the room where the will was executed, and did not see the other witnesses sign the said will. We are of the opinion and so hold that, when three of all the witnesses who signed the will, signed at the request of the testator and in his presence and in the presence of each other, the requirements of the law were thereby complied with. The mere fact that there were six witnesses to the said will and that one of them did not see the others sign is not sufficient to invalidate the said will when the other requirements of the law are satisfied.With reference to the second above assignment of error, while the evidence is somewhat conflicting, yet all of the persons who signed the said will as witnesses, declared that the testator at the time of the execution of the said will was of sound mind and memory. There is no evidence to show that the witnesses to the will had any interest in the result of the will nor any motive in declaring other than the truth with reference to the questions presented to them.Having arrived at the conclusion that the will was executed in due form, complying with the requirements of the law, and the testator had full capacity to execute the said will, we must declare that the lower court committed an error in not admitting the said will to probate. The judgment or order of the lower court refusing to admit the said will to probate is hereby reversed, and it is hereby ordered that said cause be returned to the lower court with direction that an order be entered admitting said will to probate in accordance herewith. So ordered.Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ.,concur.G.R. No. L-32213 November 26, 1973AGAPITA N. CRUZ,petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY,respondents.

ESGUERRA,J.:Petition to review oncertiorarithe judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See alsoTrenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not asacknowledgingwitnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:ART. 806. Every will must beacknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.Cost against the appellee.Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.G.R. No. 17857 June 12, 1922In re will of Josefa Zalamea y Abella, deceased.PEDRO UNSON,petitioner-appellee,vs.ANTONIO ABELLA, ET AL.,opponents-appellants.

VILLAMOR,J.:On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits A and A-1, in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on the 6th of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the court of First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the issuance of the proper letters of administration in his favor.To said application an opposition was presently by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provinces of the law, inasmuch as it was not paged correlatively in letters, nor was there any attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other.Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the deceased Josefa Zalamea.From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors, which, in their opinion, justify the reversal of the judgment appealed from.The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A, said to be the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law.The arguments advanced by appellants' counsel in support of the first assignment of error tend to impeach the credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We have made a careful examination of the evidence, but have not found anything that would justify us in disturbing the finding of the courta quo. The attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix, as the latter did likewise sign all the pages of the will and of the inventory in their presence.In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail over that of the attesting witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants impeach the credibility of Eugenio Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the trial of this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated by himself at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a criminal case against a nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this allegation of little importance to impeach the credibility of the witness Zalamea, especially because his testimony is corroborated by the other attesting witness. Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the appellants is groundless.The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of the proponent to produce one of the attesting witnesses.At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication with the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to this, the attorney for the contestants, said to the court, "without discussing for the present whether or not in view of those facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are relieved from producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that said statement be stricken out, and if the proponent wants these facts to stand to stand in the record, let him prove them." The courta quoruled, saying, "there is no need."To this ruling of the court, the attorney for the appellants did not take any exception.In the case ofAvera vs. Garcia and Rodriguez(42 Phil., 145), recently decided by 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 inCabang vs. Delfinado(34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses.Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses.It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for t he first time in this court. We believe this point is well taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)There are at least two reasons why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive.In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon appeal; and this is the more proper when the question relates to a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late.Properly understood, the case ofCabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses necessar to prove the will was in issue in the lower court.In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent, consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced inCabang 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 courta 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 courta quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law.The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters.In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea says:In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918.And the attestation clause is as follows:The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as the inventory of the properties of Doa Josefa Zalamea y Abella, was read to Doa Josefa Zalamea y Abella, and the latter affixed her name to the last, and each and every page of this will and inventory composed of ten folios in our presence; and she declared this to be her last will and testament and at her request we have affixed hereunto our respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this 19th of July, 1918, at Pagsanjan, Laguna, P.I.(Sgd.) GONZALO ABAYA,EUGENIO ZALAMEA,PEDRO DE JESUS.In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will, and makes unnecessary any other attestation clause at the end of the inventory.As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the case ofAldaba 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 thei