G.R. No. 1888. September 02, 1905

Cosme Purugganan was the husband of the appellant, and Severino
Purugganan the appellee, was his brother. Cosme died on the 13th day of
December, 1902, leaving neither children nor father nor mother
surviving. He left a will which was executed on the 30th of July, 1902.
He appointed as his only heir the appellant, his wife. In case his wife
should die before he died, he appointed as his heir Rita Barcena. In
case Rita should die before he died, he appointed as his heirs his next
of kin. In case his wife should die after Rita died, he provided that
his property should pass to his next of kin. He appointed a guardian
for Rita, and executors of his will.

At the time this document was executed, to wit, on the 30th day of
July, 1902, and at the time the testator died, on the 13th of December,
1902, the law in force in regard to the execution of wills was section
618 of the Code of Civil Procedure. This will was executed in the
presence of three witnesses, who signed the same in the presence of the
testator, and in the presence of each other. It was accordingly
executed in compliance with the law.

The judge below refused to probate the will on the ground that the
notary before whom it was executed was a brother of the appellant, and
that the will was accordingly void under the terms of article 754 of
the Civil Code, which provided that the testator could not dispose of
the whole or any part of his estate in favor of the notary who took
part in the execution of the will, or of any relation of his within the
fourth degree.

In accordance with the law now in force it is not necessary that a
notary should intervene in the execution of any will. In every case it
is sufficient if the will is signed by the testator and by three
credible witnesses, in the manner stated in said section 618. There
were in this case three credible witnesses, of whom the notary was not
one. What the notary did was no more than the work of a lawyer.
Moreover, even if the notary had been a witness to the will, it would
not have been void on that account, but by section 622 of the Code of
Civil Procedure, any legacy made to the notary who was a witness, or to
his relatives named in said section, would have been void. It follows
that article 754 of the Civil Code was repealed by these provisions of
the Code of Civil Procedure.

It is apparently claimed by the appellee in his brief that the
testator made his will as he did by reason of undue influence exercised
by the beneficiaries. There is no evidence in the case to show any
undue influence exercised by anyone. The only evidence which could
possibly be said to exist upon that point is evidence of the fact that
the notary was a brother of the appellant, who was made the heiress,
but this is not sufficient to show undue influence.

It is claimed also by the appellee that the judgment of the court
was correct, because at the time of the hearing the original will was
not produced in court. In answer to this it may be said that it does
not affirmatively appear that the original will was not produced in
court. In one part of the testimony it is stated that the will was
read. In another part of the proceedings it is stated that the will was
presented with the petition.

The fact that the witnesses did not identify their signatures to the
will is not important. We have already so held in the case of Castaneda
vs. Alemany^[1] (2 Off. Gaz., 366). Upon the point here in question the two cases are almost identical.

The judgment of the court below is reversed, and after the
expiration of twenty days the case will be remanded to that court, with
instructions to enter judgment as prayed for in the petition for the
probate of the will. No costs will be allowed to either party in this
court. So ordered.

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

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^[1] 3 Phil. Rep., 426.