Case Digest: Gil vs. Murciano, G.R. No. L-3362, March 1, 1962

  Art. 805  | Succession, Attestation Clause

Provision:

Art. 805. 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 latter witnessed and signed the will and all 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 them.

Ponente:
Jugo J.,

Petitioner: Isabel Herreros Vda. de Gil

Respondents: Pilar Gil Vda. de Murciano

Recit Version:

CFI-Manila admitted the will and testament of Carlos Gil to probate. Pilar Gil Vda. de Murciano, the oppositor, appealed. The Supreme Court reversed and denied the probate of the alleged will.

• The attestation clause does not state that the testator signed the will; it only states that it was signed by the witnesses. This omission is a fatal defect as the attestation clause's purpose is to certify that the testator signed the will, which is the most essential element of the clause.
• Act No. 2645 of the Philippine Legislature, aimed to increase guarantees and solemnities in the execution of wills. The court cannot cure deficiencies through inferences, implications, or internal circumstantial evidence. 
• The attestation clause must be clear and should not require interpretation. Statutes prescribing formalities for wills must be strictly construed, and the courts cannot supply the deficiencies in the execution of a will.
• The court cannot disregard the statutory requirements for the execution of wills. The right to make a testamentary disposition is purely of statutory creation and is available only upon compliance with the statute.

Facts:

In 1939, Carlos Gil executed a last will and testament in Spanish language.

The translation of the will provides:

First Page (1)

IN THE NAME OF GOD, AMEN

I, Carlos Gil, 66 years old, residing in Porac, Pampanga, I. F., being of sound mind and in full possession of my intellectual faculties, freely and spontaneously, without violence, coercion, fraud, or illegal influence from any outsider, hereby make and ordain this my will and last testament in Spanish, a language I speak and understand, in the following manner:

I declare that during my marriage with my wife, now Isabel Herreros, we had no children;

I declare that I have properties located in Manila and in the Province of Pampanga;

I give and bequeath to my beloved wife, Isabel Herreros, all my movable and immovable properties located in Manila and Pampanga, under the condition that upon her death, if there are remaining assets inherited by her from me, such remaining assets shall be bequeathed to Don Carlos Worrel.

I appoint Dr. Galicano Coronel, in whom I have complete trust, as the executor of my estate after my demise, with exemption from posting bond;

In witness whereof, I sign this my testament and on the left margin of each of its two useful pages, with the attestation clause, in the presence of the witnesses, who in turn signed each of said pages and the attestation clause in my presence, each one of them with the others, today in Porac, Pampanga, I. F., on the 27th day of May, in the year one thousand nine hundred and thirty-nine.

CARLOS GIL

Testimony:

Second Page (2)

We, the undersigned, all of legal age, certify: that the testament preceding this document in the Spanish language known to the testator, composed of two useful pages with the attestation clause paginated consecutively in letters and numbers at the top of the box, as well as all the sheets of the same, in our presence, and that each of us has witnessed and signed said document and all its pages in the presence of the testator and in the presence of each one of us.

(Signed) ALFREDO T. RIVERA

(Signed) RAMON MENDIOLA

(Signed) MARIANO OMAÑA

CFI-Manila admitted the alleged will and testament of Carlos Gil to probate.

Pilar Gil Vda. de Murciano, the oppositor, appealed, raising only questions of law.

She identified two alleged errors related to the will's legality:

1. The lower court erred by not declaring that Carlos Gil's alleged testament was not executed in accordance with the law.
2. The lower court erred in legalizing the said testament.

Issue: 

WoN the last  will and testament of Carlos Gil is valid. NO

Held:

It will be noted that the attestation clause above quoted does not state that the alleged testor signed the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the substance of the statement.

It is claimed that the correction may be made by inference. If we cure a deficiency by means of inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the line? Following that procedure we would be making interpolations by inferences, implication, and even by internal circumstantial evidence. This would be done in the face of the clear, unequivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190, before it was amended, contained the following provision:

• . . . But the absence of such form of attestation shall not render the will invalid if it proven that the will was in fact signed and attested as in this section provided.

However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the contents of the attestation clause, entirely suppressed the above-quoted provision. This would show that the purpose of the amending act was to surround the execution of a will with greater guarantees and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law requires certain requisites for the conclusiveness of circumstantial evidence.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator should have made an attestation clause, which is the function of the witness. But the important point is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is evident that one cannot certify his own signature, for it does not increase the evidence of its authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is true, but said rules apply to the body of the will, containing the testamentary provisions, but not to the attestation clause, which must be so clear that it should not require any construction.

The parties have cited pro and con several decisions of the Supreme Court, some of which are said to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended by Act No. 2645.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:

• 1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL PROCEDURE CONSTRUED. — The right to dispose of the property by will is governed entirely by statute. The law is here found in section 618 of the Code of Civil Procedure, as amended. The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention.
• 2. ID.; ID.; ATTESTATION. — The Philippine authorities relating to the attestation clause to wills reviewed. The cases of Saño vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra, modified.
• 3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil Procedure, as amended, which provides that "The attestation clause shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other" applied and enforced.
• 4. ID.; ID.; ID.; ID. — An attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. (Sano vs. Quintana, supra.)

In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now Chief Justice of the Supreme Court, in his decision made the following pronouncement:

• . . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los testadores firmaron el testamento en presencia de los tres testigos instrumentales y que estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar que dichos testigos firmaron el testamento en presencia de los testadores, ni que estos y aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia de los segundos y vice-versa.
• En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio intestado.
• ". . . In the attestation clause of the testament in question, it is stated that the testators signed the will in the presence of the three instrumental witnesses, and that these witnesses signed the will in the presence of each other, but it is not stated that these witnesses signed the will in the presence of the testators, nor that the testators and those witnesses signed each and every page of the will, the former in the presence of the latter and vice versa.

Therefore, the request for the legalization of the alleged Exhibit A testament of Gregorio Pueblo and Carmen Quinto is denied, and it is declared that Gregorio Pueblo died intestate."

The Supreme Court fully affirmed the decision, laying down the following doctrine:

• 1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. — The attestation clause must be made in strict conformity with the requirements of section 618 of Act No. 190, as amended. Where said clause fails to show on its face a full compliance with those requirements, the defect constitutes sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to establish facts not appearing on the attestation clause, and where said evidence has been admitted it should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
• 2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. — Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to give effect to the intention of the Legislature. Statutes prescribing formalities to be observed in the execution of wills are very strictly construed. Courts cannot supply the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban vs. Gorcho case, supra, but not to the extent of validating an attestation clause similar to that involved herein.

In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was complete, and it was also signed by the two attesting witnesses. For this reason, the court said:

• In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above described paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of section 1 of Act No. 2645 which provides that: . . . (p. 381, supra.)

The attestation clause involved herein is very different.

In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:

• An attestation clause to a will, copied from a form book and reading: "We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testatrix, whose name is signed hereinabove, has publish unto us the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same and each page thereof in the presence of said testatrix and in the presence of each other," held not to be fatally defective and to conform to the law.

This very different from the attestation clause in the case at bar.

In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will was objected to on the ground that, although the attestation clause stated that "each of the pages of which the said will is composed" was signed by the testatrix at the left margin and at the foot of the fifth page, it did not state that the signature was made in the presence of the witnesses. It was held, however, that said deficiency was cured by the phrase "as well as by each of us in the presence of the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and, unlike the attestation clause in the present case, does not necessitate any correction. In the body of the will the testatrix stated that she signed in the presence of each and all of the three witnesses. This was considered as a corroboration, but it was unnecessary.

In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil., 745), the attestation clause reads as follows:

• Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador, Valerio Leynez. El testamento consta de dos (2) paginas solamente.
•  "Subscribed and declared by the testator Valerio Leynez as his last will and testament in the presence of each and every one of us, and at the request of the said testator, we each sign this document in the presence of the others, or in the presence of others and of the same testator, Valerio Leynez. The testament consists of only two (2) pages."

The objection was that the attestation clause did not state that the testator and the witnesses signed each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore, that in case of the will complied with all the requisites for its due execution. In the instant case, essential words were omitted.

In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18, 1939), the attestation clause reads as follows:

• Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de cada uno de nosotros.
• "We hereby certify that on the date and in the town mentioned above, Mr. Emiliano Alcala executed his last will and testament composed of four pages, including this attestation clause. We were present at the moment of reading and confirming that the aforementioned will is his last will and testament, consisting of four pages on typewriter paper. We were also present when he signed this document at the bottom of each page and on the left margin of each page of the testator, also in his presence and in the presence of each one of us on every page and on the left margin of this deed or will. In witness whereof, we sign below in the presence of the testator and each one of us."

The above attestation clause is substantially perfect. The only clerical error is that it says "testador" instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders unnecessary the use of the verb "firmamos."

In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause did not state the number of pages of the will. However, it was held that this deficiency was cured by the will itself, which stated that it consisted of three pages and in fact it had three pages.

In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the Court of Appeals, the attestation clause (translated in Spanish) reads as follows:

• Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos, firmamos enpresencia de la testadora y en presencia de cada uno de nosotros.
• "We, the witnesses, certify that what we have signed is the will and last testament, composed of four pages, of Numeriano Rallos, who, after reading and having the mentioned will read to her, and after she gave her consent, signed and marked it with her right thumb in our presence and in the presence of each one of us. Likewise, each one of us, the witnesses, signed in the presence of the testatrix and in the presence of each one of us."

It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the witnesses of each and every page of the will, but the omission is cured by the fact that their signatures appear on every page. This attestation clause is different from that involved in the present case.

There is no reason why wills should not be executed by complying substantially with the clear requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of property by will is not natural but statutory, and statutory requirements should be satisfied.

The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon the compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose only intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will as presented, shows a compliance with the statute. 

In interpreting the legislature's thought, courts have rigidly opposed any exception tending to weaken the basic principle underlying the law, the chief purpose of which is to see that the testator's wishes are observed. It is possible, in some or many cases, a decedent may have thought he had made a will, but the statute says he had not. The question is not one of his intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . . truly expressing the intentions of the testator are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . . has taught of it best and has therefore determined, to run the risk of frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.

It has always been the policy of this court to sustain a will if it is legally possible to do so, but we cannot break down the legislative barriers protecting a man's property after death, even if a situation may be presented apparently meritorious. 

In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It is so ordered.