G.R. No. 1072. March 30, 1904

Manuel Abello y Bayot, as executor of the testamentary estate of
Josef a Montilla y Janson, deceased, in his own name and on behalf of
Petronila Montilla and Juana Montilla, also executrices of the said
estate, on the 2d of January, 1902, filed in the Court of First
Instance of Occidental Negros the will of the said Josefa Montilla, in
order that after the designation of the time and place and notice to
the parties in interest, the same might be admitted to probate in
accordance with the prevailing laws and declared to be the last will of
the testator. The will appears on page 3 of the printed transcript of
the proceedings brought before this court by virtue of the appeal.

Notice of the day set for the probate of the will was published for
three consecutive weeks in the newspaper El Tiempo, published in
Iloilo, as being the paper of greatest circulation in the Island of
Negros. Attorney P. Q. Rothrock, on behalf of Señora Paz Kock de
Monasterio, on the day set for the hearing, the 13th of May, 1902,
filed a petition praying that the said will be declared null and void,
and that the petitioner be appointed administratrix of the property
left by Josefa Montilla y Janson, deceased, and for such other and
further relief as the court might find conformable to law and equity.

The court below, in view of the will and of the result of the
testimony of the president and municipal secretary of the town of
Pulupandon, and of the three witnesses who were present at the
execution of the said will, rendered a decision on August 8, 1902,
refusing to allow the will presented, and which purports to have been
executed by Josefa Montilla March 1, 1899, upon the ground that the
said will was not duly executed in accordance with the laws in force in
the Philippine Islands, and more especially in accordance with the laws
of the Island of Negros.

The will in question was executed under the regime of the Civil Code
and the Notarial Law, and with respect to its forms and essential
requisites the present Code of Civil Procedure is not applicable. That
code became operative October 1, 1901, whereas the will was executed
March 1, 1899.

This being so, and taking into consideration the fact that the will
in question was opposed not upon the ground that it was a forgery, but
upon the ground that it was a nullity by reason of the defects
attributed to it, it appears that the court below held in the decision
appealed that the instrument presented by Senor Manuel Abello as the
will of Dona Josefa Montilla contains all the requisites established by
the Civil Code for the validity and enforceability of open wills, and
that it was executed before an officer who at that time exercised the
functions of a notary, and that therefore the document was of the
character of a public instrument under the law. However,
notwithstanding this conclusion, which was entirely in conformity with
the law and the result of the evidence, the judge held that the said
document was without legal value as an open will of Josefa Montilla,
deceased, because it was not protocolized within the twenty-four hours
prescribed by article 7 of the Notarial Law, or within the thirty days’
time fixed by General Orders, No. 210, issued by the president of the
Island of
Negros, November 17, 1898, a special law promulgated by the government
at that time in control in that island in substitution of the
Government of Spain. Consequently if the instrument or document in
question had been physically attached to the protocol and had been sent
by the local president, before whom it was executed, to a notary public
or to a delegate of justice of the government of the Province of
Negros, it would have the character of an open will of Josefa Montilla,
deceased.

The fact is that these proceedings were instituted, not for the
protocolization, but for the probate of the will in accordance with the
Code of Civil Procedure, for the purpose of enforcing the wishes of the
testatrix, which appear clearly and authentically in the will, which
has not been impugned as a forgery. According to the laws in force in
these Islands before the promulgation of the present Code of Civil
Procedure, the gobernadorcillos of towns more than two leagues away from the head town of the province
were authorized to act as notaries public. The power to exercise this authority had been vested in the gobernadorcillos as well as in the alcaldes mayores
of the provinces from a very remote period, and their power to exercise
the same was recognized by a resolution of the Audiencia of Manila
dated August 31, 1860, approved by royal order
dated January 18,1865.

When the title of the local headmen of the towns was changed to
municipal captain by royal order of July 17, 1894, these officers were
also given notarial authority. Subsequently, the revolutionary
government, and more especially the government of the Island of Negros,
in General Orders, No. 210, above cited, recognized similar authority
on the part of the municipal presidents of pueblos.

Article 7 of the Notarial Law of February 15,1889, says:”Notwithstanding the provisions of article 1, the gobernadorcillos
of towns more than 22 kilometers (four leagues) from the provincial
capital shall be empowered to legalize public instruments, which they
shall forward within the period of twenty-four hours from the time of
their execution to the provincial notary for protocolization.” This
article was amended by a special law of the provincial government of
Negros, applicable to this case, by which the period for the
transmission and protocolization of public instruments authorized by
the local president, an officer who substituted the former gobernadorcillos,
was extended to thirty days. Neither the Notarial Law nor its
regulations of April 11, 1890, nor the general order cited of the
government of the Island of Negros have established any penalty for the
failure to comply with the requisite of protocolization, nor do they
declare that an instrument of a public character executed before an
officer invested with notarial power shall be void or unenforceable if
not protocolized. Such a declaration would be indispensable with
respect to wills, and is of great importance at the present time in
which the probate of the will in question is sought in accordance with
the Code of Civil Procedure, the provisions of which are to be
liberally interpreted.

Article 7 of the Notarial Law in question can not be regarded as
repealed by implication by article 694 of the Civil Code—which provides
that an open will shall be executed before a notary public and three
witnesses—upon the ground that the Civil Code is a law of subsequent
date, it having gone into effect December 7, 1889, while the Notarial
Law went into effect July 1 of the same year, because the Civil Code,
instead of repealing any article or any part whatever of the Notarial
Law, recognizes and presupposes its existence as a special law in
several of its articles. This may be seen from an examination of
articles 1216 and 1217, which declare that public documents are those
authorized by a notary public or public employee, such as a gobernadorcillo or municipal captain or municipal president. The Civil Code furthermore provides that
documents which are prepared by notaries public shall be governed by the notarial legislation.

Furthermore, the regulations for the application of the Notarial
Law, promulgated the 19th of June, 1890, a date long subsequent to that
of the code, make provision in articles 93 and 94 thereof for duties to
be performed by notaries and gobernadorcillos.

The Mortgage Law went into effect in these Islands the 1st day of
December, 1889, a date prior to that upon which the Civil Code took
effect, but nevertheless the Civil Code, although a subsequent law of
general character, has not repealed the Mortgage Law, which was a
special enactment. This was so expressly declared by the general
direction of the colonial office, in approving a circular of the chief
justice of the Audiencia
of Cebu, and in dismissing the appeal taken by the registrar of
property of that island, that officer having announced in the Bulletin
of Cebu that henceforth contracts executed before the gobernadorcillos
would be inadmissible, which announcement the chief justice of Cebu
declared to be erroneous and in violation of article 7 of the Notarial
Law, which had not been repealed by the Mortgage Law. The same reason
applies for holding that article 7 of the Notarial Law has not been
repealed by the Civil Code, which was promulgated a few days after the
Notarial Law, and this was so expressly held in the royal order
referred to of July 17,1894, since which time the Notarial Law and its
regulations have been in force, until their recent repeal.

It is therefore unquestionable that the document exhibited as the
will of Dona Josefa Montilla is a public instrument executed in
accordance with the law, and which only needed to be protocolized, and,
the protocolization not having been made in time, its probate is now
prayed for in accordance with the Code of Civil Procedure. There being
no provision of law in opposition to this petition, and the said will
having been executed with greater solemnities than these required in
section 618 of the said code, and it appearing from the record that the
municipal president, his secretary, and the three witnesses to the will
affirmed its contents and other facts connected with its execution,
there is no legal reason or motive opposed to the probate of the said
will, as it does not fall within any of the provisions of section 634
thereof, but is covered by sections 618,625, 634, 638, and 639.

For the reasons stated, we are of the opinion that the judgment
appealed must be reversed, and that as the instrument presented
purports to be the last will of Josefa Montilla y Janson, deceased, the
judge should admit the same to probate and take such action thereon as
may be necessary in accordance with the provisions of the Code of Civil
Procedure. No costs will be allowed. Judgment will be entered in
accordance with this opinion twenty days from the date of the filing
thereof and the case remanded to the court below for further
proceedings in conformity therewith. So ordered.

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