IN RE ESTATE OF TOMASA NEPOMUCENO, DECEASED, SANTOS CARTAGENA, PETITIONER AND APPELLEE, VS. ISAIAS LIJAUCO AND ESPERANZA ZAVALLA, OPPONENTS AND APPELLANTS.

This is an appeal from a judgment of the Court of First Instance of Laguna
admitting a will to probate and dismissing the opposition thereto.

It appears that Tomasa Nepomuceno executed a will on the 3d day of March,
1913, but her attorney having been informed that the will was signed by herself
when only two of the three attesting witnesses were present, he advised her that
the will be reexecuted and that the testatrix sign the will in the presence of
all three attesting witnesses. Accordingly, on the day following, the will was
reexecuted and all of the formalities required by law were observed.

It is contended on the part of the appellants that the will was not executed
in the manner required by law and that the testimony of the attesting witnesses
was not sufficiently uniform to demonstrate that all of the formalities required
by law had been complied with.

We are unable to agree with this contention. It appears clear from the
testimony of the attesting witnesses that the testatrix signed the will in their
presence and that, at her request, each one of the witnesses in the presence of
the testatrix and of the other two attesting witnesses signed the will. This is
all that the law requires and while there may be some hesitation in the
testimony of some of the witnesses, we are satisfied that the evidence, such as
it is, taken in connection with the attesting clause attached to the will, which
was made and signed at the time the will was executed and which carries with it
the presumption of correctness, is sufficient to sustain the finding of the
trial court that the will was properly executed and should be probated.

It is contended on this appeal that it is not an essential requisite of a
will that the testator sign it in the presence of the three attesting witnesses.
We are of the opinion that this contention is not sound. While the first part of
section 618 of the Code of Civil Procedure does not expressly require that the
testator sign the will in the presence of the attesting witnesses, the second
part thereof does require that fact to appear in the attestation clause and this
court has always held that such a requisite is essential to the due execution of
the will. The second part of section 618 provides that “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.”

The judgment appealed from is affirmed, with costs against the
appellants.

Arellano, C. J., Torres, Johnson, Carson, and Araullo, JJ.,
concur.