G.R. No. 1439. March 19, 1904

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3 Phil. 426

[ G.R. No. 1439. March 19, 1904 ]




(1) The evidence in this case shows to our satisfaction that the
will of Dona Juana Moreno was duly signed by herself in the presence of
three witnesses, who signed it as witnesses in the presence of the
testatrix and of each other. It was therefore executed in conformity
with law.

There is nothing in the language of section 618 of the Code of Civil
Procedure which supports the claim of the appellants that the will must
be written by the testator himself or by someone else in his presence
and under his express direction. That section requires (1) that the
will be in writing and (2) either that the testator sign it himself or,
if he does not sign it, that it be signed by some one in his presence
and by his express direction. Who does the mechanical work of writing
the will is a matter of
indifference. The fact, therefore, that in this case the will was
typewritten in the office of the lawyer for the testatrix is of no
consequence. The English text of section 618 is very plain. The
mistakes in translation found in the first Spanish edition of the code
have been corrected in the second.

(2) To establish conclusively as against everyone, and once for all,
the facts that a will was executed with the formalities required by law
and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of a
will. (Sec. 625.) The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass
upon the validity of any provisions made in the will. It can not
decide, for example, that a certain legacy is void and another one
valid. It could not in this case make any decision upon the question
whether the testatrix had the power to appoint by will a guardian for
the property of her children by her first husband, or whether the
person so appointed was or was not a suitable person to discharge such

All such questions must be decided in some other proceeding. The
grounds on which a will may be disallowed are stated in section 634.
Unless one of those grounds appears the will must be allowed. They all
have to do with the personal condition of the testator at the time of
its execution and the formalities connected therewith. It follows that
neither this court nor the court below has any jurisdiction in this
proceeding to pass upon the questions raised by the appellants by the
assignment of error relating to the appointment of a guardian for the
children of the deceased.

It is claimed by the appellants that there was no testimony in the
court below to show that the will executed by the deceased was the same
will presented to the court and concerning which this hearing was had.
It is true that the evidence does not show that the document in court
was presented to the witnesses and identified by them, as
should have been done. But we think that we are justified in saying
that it was assumed by all the parties during the trial in the court
below that the will about which the witnesses were testifying was the
document then in court. No suggestion of any kind was then made by the
counsel for the appellants that it was not the same instrument.  In the last question put to the witness Gonzales the phrase ” this
will ” is used by the counsel for the appellants. In their argument in
that court, found on page 15 of the record, they treat the testimony of
the witnesses as referring to the will whose probate they were then

The judgment of the court below is affirmed, eliminating therefrom,
however, the clause ” el cual debera ejecutarse fiel y exactamente en
todas sus partes.” The costs of this instance will be charged against
the appellants.

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

Date created: January 18, 2019


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