G.R. No. 20366. August 30, 1923

This is an appeal from an order of the Court of First Instance of the City of
Manila, denying probate to the document Exhibit B, which purports to be the last
will and testament of W. Neumark. The will in question was typewritten at Manila
in the German language upon a single sheet of legal-cap paper and bears the date
of June 28, 1922. It is signed by the purporting testator and below his
signature to the left are words which in English mean “signed in the presence
of,” followed by the names of three attesting witnesses M. Cruz, P. Medel, R.
Petrich.

The document in question fulfils all the requirements of section 618 of the
Code of Civil Procedure concerning the requisites to the due execution of a will
in the Philippine Islands, with the sole exception that there is no formal
attestation clause annexed to the will and containing the matter specified in
the last sentence of section 618, as amended.

The trial judge denied probate to the document on the sole ground that the
attestation clause is wanting, and notwithstanding the fact that he was fully
convinced that the document is authentic and was executed with all the
formalities required by law with the single exception of the absence of the
attestation clause.

An earnest effort has been made in this court by the attorneys for the
proponent of the will to procure a reversal of the order denying probate to the
will, on the ground that the want of the attestation clause is immaterial where
the instrument submitted to probate is in fact otherwise executed in the manner
required by law.

We are of opinion that the trial judge committed no error in refusing probate
to this instrument. As section 618 of the Code of Civil Procedure originally
stood it contains the following sentence at the end: “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.” As the law
thus stood the instrument before us was undeniably admissible to probate; but
when Act No. 2645 was passed, the sentence above quoted was omitted and the last
sentence of said section as it now stands reads as follows: “The attestation
shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and
all pages thereof in the presence of the testator and of each other.”

In many cases that have arisen since Act No. 2645 went into effect, this
court has uniformly held that there must be an attestation clause and that it
must express the material matters mentioned in the foregoing quotation with
substantial accuracy. Among the considerations conducing to this conclusion was
the fact that the Legislature had suppressed the last sentence of the section as
it originally stood, from which the intention was deduced that the Legislature
intended that the requirement as to the presence of an attestation clause and as
to its contents should be mandatory.

The admission of the document now before us to probate would abrogate a long
line of decisions in which the point now in question has been under
consideration by the court; and we are unable to bring ourselves to disturb a
rule now generally known and accepted by the profession as embodying our
interpretation of the statute.

The jugdment appealed from must be affirmed, and it is so ordered, without
special pronouncement as to costs.

Araullo, C.J., Malcolm, Avanceña,
Villamor, and Romualdez, JJ., concur.

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JOHNS, J.:

For the reasons assigned in my dissenting opinion in G. R. No. 19680, decided
by this court on March 3, 1923, in the case of Esconde vs. Belen,^[1] I dissent in this case.

In the instant case, the will is all written on one side of one sheet of
paper, and is signed by both the testator and the witnesses on the same side of
the sheet. After it was signed, it was deposited by the testator with the German
Consul for safe-keeping.

The purpose of the law is to prevent fraud in the making of wills.

Under
the facts shown in the record, in the instant case fraud would be a physical
impossibility. I am of the opinion that the will was legally executed under the
existing law, and, for such reason, I dissent.

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^[1] Not reported.