G.R. No. 1708. August 24, 1905

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4 Phil. 700

[ G.R. No. 1708. August 24, 1905 ]




On October 12, 1901, before Felipe Villasis y Castaneda, 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

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 Philippine
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 wills, 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

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

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 df 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

The trial court states in its decision that from the evidence
introduced the court is convinced 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 here-with. So ordered.

Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.
Willard, J., did not sit in this case.

Date created: April 25, 2014


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