G. R. No. L-3497. May 18, 1951
IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF JOSE VENZON. VALENTINA CUEVAS, PETITIONER AND APPELLEE, VS. PILAR ACHACOSO, OPPOSITOR AND APPELLANT.
BAUTISTA ANGELO, J.:
First Instance of Zambales admitting to probate the last will and
testament of the late Jose Venzon.
On January 19, 1946,
Jose Venzon died in Iba, Zambales, leaving a will. In said will the
deceased instituted as his heirs, Valentina Cuevas, his widow and
Rosario Asera Venzon, his daugther. He named therein his widow as
executrix of the will. On February 1, 1946, Valentina Cuevas filed a
petition for the probate of said will.
On May 10, 1946, one Pilar Achacoso filed an alternative petition for
the probate of a previous will executed by the deceased praying therein
that, if the will submitted by the widow be rejected, the other will be
admitted to probate in lieu thereof. In the previous will there are
other heirs instituted, among them petitioner Pilar Achacoso. Pilar
Achacoso objected to the probate of the second will executed by the
deceased on October 10, 1945. After due hearing, the court found that
the latter will was executed in accordance with law and ordered that it
be admitted to probate. Pilar Achacoso took the case to the Court of
Appeals, but the latter certified it to this Court on the ground that
it involves purely questions of law.
“The main error assigned refers to the alleged lack of attestation
clause in the will under consideration, or to the fact that, if there
is such attestation clause, the same has not been signed by the
instrumental witnesses, but by the testator himself, and it is claimed
that this defect has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under
correlative numbers, the provisions of the will, winds up with the
following clause:
“IN
WITNESS WHEREOF, I sign this testament or last will in the municipality
of Iba, Zambales, Philippines, this 10th day of October, 1945, in the
presence of the three witnesses, namely Dr. Nestorio Trinidad, Don
Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to
my signing; this testament is written in three (3) sheets marked by
letter ‘A’, ‘B’ and ‘C consecutively on top of each sheet and upon
my-request and in my presence and also in the presence of each of the
aforesaid instrumental witnesses, they also signed this testament
already referred to.I hereby manifest that every sheet
of the aforesaid testament, on the left-hand margin as well as the
testament itself have been signed by me as also each of the witnesses
has also signed in my presence and in the presence of each other.
| (Sgd.) JOSE VENZON | ||
| Witnesses: | ||
| (Sgd.) NESTORIO TRINIDAD | ||
| (Sgd.) BALDOMERO L. ACHACOSO | ||
| (Sgd.) PROCESO CABAL |
The
clause above quoted is the attestation clause referred to in the law
which, in our opinion, substantially complies with its requirements.
The only apparent anomaly we find is that it appears to be an
attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, however, is not in our opinion
serious nor substantial as to affect the validity of the will, it
appearing that right under the signature of the testator, there appear
the signatures of the three instrumental witnesses,
“Instrumental witness, as denned by Escriche in his Diccionario
Razonado de Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who
takes part in the execution of an instrument or writing” (In re
will of Tan Diuco, 45 Phil, 807, 809). An instrumental witness,
therefore, does not merely attest to the signature of the testator but
also to the proper execution of the will. The fact that the three
instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not
only to the genuineness of his signature but also to the due execution
of the will as embodied in the attestation clause.
The attestation clause in question bears close similarity with the attestation clause in the will involved in Aldaba vs.
Roque, (43 Phil., 378). In that case, the attestation clause formed
part of the body of the will and its recital was made by the testatrix
herself and was signed by her and by the three instrumental witnesses.
In upholding the validity of the will, the court said:
“In
reality, it appears that it is the testatrix who makes the declaration
about the points in the last paragraph of the will; however, as the
witnesses, together with the testatrix, have signed the said
declaration, we are of the opinion and so hold that the words above
quoted of the testament constitute a sufficient compliance with the
requirements of Act No. 2645.”
As was said in one
case, “the object of the solemnities surrounding the execution of the
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be interpreted
in such a way as to attain these primordial ends. But on the other
hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to
make a will. So when an
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the
testator’s will, must be disregarded.” In re will of Tan Diuco, supra, p. 811.) (Italics supplied.)
Expressive of this liberal view of interpretation, are also the
following rules embodied in the new Civil Code. These provisions,
although not directly applicable, are however, significant because they
project the point of view of our legislature when it adopted them
having in view the existing law and jurisprudence on the matter.
“ART.
788. If a testamentary disposition admits of different interpretations,
in case of doubt, that interpretation by which the disposition is to
be operative shall be preferred.”“ART. 791. The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which will
render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent
intestacy.”
Wherefore, the order appealed from is hereby affirmed, with costs against the appellant.
Paras, C. J., Feria and Tuason, JJ., concur.
JUGO, J.:
I concur in the result.
MONTEMAYOR, J., with whom concur Bengzon and Padilla, JJ.,
The facts in this case are correctly related in the learned majority
decision penned by Mr. Justice Bautista Angelo. The main issue involved
is well stated in that portion of the majority decision which for
purposes of reference I quote below:
“The
main error assigned refers to the alleged lack of attestation clause in
the will under consideration, or to the fact that, if there is such
attestation clause, the same has not been signed by the instrumental
witnesses, but by the testator himself, and it is claimed that this
defect has the effect of invalidating the will.“The will in question, after reciting in separate paragraphs, and under
correlative numbers, the provisions of the will, winds up with the
following clause:‘In witness whereof, I sign this testament or last
will in the municipality of Iba, Zambales, Philippines, this 10th day
of October, 1945, in the presence of the three witnesses, namely Dr.
Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal as
instrumental witnesses to my signing; this testament is written in
three (3) sheets marked by letter “A”, “B” and “C” consecutively on top
of each sheet and upon my request and in my presence and also in the
presence of each of the aforesaid instrumental witnesses, they also
signed this testament already referred to.‘I hereby
manifest that every sheet of the aforesaid testament, on the left-hand
margin as well as the testament itself have been signed by me as also
each of the witnesses has also signed in my presence and in the
presence of each other.
| (Sgd.) JOSE VENZON | ||
| Witnesses: | ||
| (Sgd.) NESTORIO TRINIDAD | ||
| (Sgd.) BALDOMERO L. ACHACOSO | ||
| (Sgd.) PROCESO CABAL’ “ |
The majority opinion correctly states that the clause of the will
above-quoted “appears to be an attestation made by the testator himself
more than by the instrumental witnesses.” I go further and say that it
is an attestation by the testator only, and not by the witnesses. The
three witnesses—Trinidad, Achacoso, and Cabal—signed under the
signature of Jose Venzon under the word “witnesses.” Nothing can be
more clear than that they merely witnessed the signature of the
testator, nothing more.
In an ordinary attestation clause to a will, as may be seen or verified
from any legal form, the attestation clause invariably contains a
certification, affirmation or solemn statement made by the witnesses
and signed by them, to the effect that the testator signed the will and
every page thereof, in their presence, and that they also signed in the
same manner and in the presence of each other. In other words, it is
they (witnesses) who speak and certify and attest. They are the ones
who assure all persons interested, including the probate court that the
attestation clause signed by them contains a true and faithful
certificate or guarantee of the signing of the will by the testator and
by themselves as required by law, and that they were in a position to
do so because they signed last.
Now, let us examine the clause of the will above-quoted. As the
majority opinion states, it is the testator that speaks and not the
attesting witnesses. He certifies that not only he signed the will and
every page thereof in the presence of three witnesses, but that said
three witnesses also signed in his presence and in the presence of each
other. Then he signed said clause and the will, and thereafter, the
three witnesses signed under the word “witnesses”, evidently giving us
to understand that they saw him sign, nothing more.
From our everyday experience and observation, in ordinary written
contracts or deeds, the witnesses who sign at the foot of the
instrument and after the signatures of the parties to the contract or
deed merely witness the signatures of said parties, nothing beyond
that. The law does not require, and they do not certify that they
signed in the presence of each other, much less, that the instrument or
deed has been executed according to legal requirements. They have
nothing to do or to say about the truth or falsity of the statements
contained in the body of the document. For all they know the vendor may
not be the owner of the land he is selling, and the vendee may not in
fact have paid the amount stated as received by the vendor that they
know and impliedly affirm and attest is that they saw the parties sign
the deed. And that is exactly what took place in the execution of the
will in question. The witnesses signed merely as witnesses to the
signature of the testator. They neither expressly nor impliedly
affirmed or certified that the assertions about the signing of the will
and every page thereof, contained in the jso-called attestation clause,
are true, for the obvious reason that said clause is not their own,
neither have they signed it. .
Let us apply a simple test. Supposing that the statements contained
in the so-called attestation clause in this case contained a false
narration of facts. Can and may said
three witnesses or anyone of them be properly and justly accused of
falsification? I seriously doubt it. They can truthfully and correctly
say in their defense that they made no certificate, statement or
narration, whether false or true. The certificate and attestation was
made only by the testator himself and not by them (witnesses).As
admitted and stated in the majority opinion, it was he (testator) who
spoke, not they (witnesses). It may be that the testator, as it were,
took the very words out of their mouths, but the utterance and the
affirmation were his, not theirs. He erroneously assumed their role as
attesting witnesses. But that is far from fulfilling the requisites
of the law that demands such utterance, assurance and affirmation from
three witnesses and from no one else.
Incidentally, it may be stated that what the testator states in said
clause could not have been all true. He says and certifies that the
three witnesses signed the will in his presence and in the presence of
each other. Then he signed said certificate or statement or clause. How
could he truthfully and correctly say all this when at the time that he
was making the statement or certificate and at the very instant that he
signed the same the three witnesses had not yet signed (in his presence
and in the presence of each other), for the simple reason that they
signed last, and, naturally, after the testator had made and signed his
premature and untrue statement and affirmation. The sequence is
obviously wrong. In other words, the testator was basing his statement
and certificate upon a mere future presumption and expectation.
The majority bolsters its stand by citing the case of Aldaba vs.
Roque, 43 Phil., 378, where a similar attestation clause was signed by
the testatrix herself, and this Court held that inasmuch as the
witnesses signed with the testatrix, it was a sufficient compliance
with the requirements of the law on wills. I am afraid that the
doctrine laid down in that case of Aldaba vs. Roque, supra,
constitutes a wide departure from the well established rule about the
due execution of wills and, for the guidance of prospective testators,
the bench and the bar, it is about time that we revised said doctrine.
We should strictly comply with the requirements of the law about the
execution of wills so as to effectively close the door to fraud,
deceit, and duress. When the law requires that the attesting witnesses
make the attestation and formal declaration, we should insist that they
and not someone else, even the testator, assume that role. Of what
value can the statement or attestation or certificate about the
signatures on the will, made by the testator be? Absolutely none. It
will be remembered that a will is a peculiar instrument in the sense
that it comes to life and goes into effect only after the death of tile
testator, not before. Naturally, in the probate of a will, the testator
can never be a witness to establish and support the truth of the
statement contained in his certificate or attestation. In other words,
in a contested will where evidence is required to prove the due
execution of the testament, a certificate or affirmation made by the
testator himself, besides being unnecessary and not required by law,
becomes an empty and ineffective attestation because the attestator
himself is no longer available to support it by his declaration under
oath in court. That is why the law requires as attesting witnesses,
three other persons who might be expected to be yet alive and available
when the will is presented for probate. And when the will is contested
the law further requires all the said three witnesses to appear in
court and testify and ratify the statement contained in the attestation
clause.
So, in the case of In Re Will of Tan
Diuco, 45 Phil. 807, this Court speaking of attesting witnesses said
that the three witnesses should sign the attestation clause “inasmuch
as they alone can certify the facts to be stated in said clause, for
having taken a direct part therein, as they saw the testator sign the
will, or the person requested by him to sign all the sheets of the
will, that* is, the document constituting his last will and testament,
and affirm that it was signed under his express direction in the
presence of said witnesses and that all the sheets
To
consider the words and statements contained in the so-called
attestation clause in the present case, as made and uttered by the
three witnesses just because they signed their names under the
testator’s signature, as witnesses to his signing the document, is to
ascribe and impute to them as their act and declaration an act clearly
not their own, and to put into their mouths words and statements never
uttered or spoken by them; it is to give to the clause and the
signatures under it, a significance and meaning and effect not
warranted by normal and reasonable understanding and interpretation.
Under the interpretation given to the clause in question by the
majority opinion as well as the interpretation given by this Court to a
similar clause in the case of Aldaba vs. Roque, supra,
in a case where a testator makes and signs a similar attestation
clause, any three persons who may happen to have been in the same room
where the testator was, and have seen him or were in a position to have
seen him affix his signature to his intended last will and testament,
may afterwards leave the room and go to their respective homes, towns
and provinces; and subsequently, indeed, even after the death of the
testator, when the person or persons who prepared the will came to
realize the necessity of attesting witnesses, they could send the
document to said witnesses in the places where they may be found, one
after the other and request said three persons to sign as attesting
witnesses; and each of said three persons may honestly, truthfully and
without any mental reservation, sign his name to the document as a
witness for the reason that he had actually witnessed the signature of
the testator, for after all, that is all that he impliedly certifies by
his signature as a witness, and yet, such signatures of the witnesses
under such circumstances would not only be without the contemplation of
law but would also expressly and openly violate its requirements, for
the law provides that the attesting witnesses must certify and attest
that they signed as witnesses in the presence of the testator and in
the presence of each other, facts which are absolutely and completely
wanting in the example given.
The foregoing are the reasons
why I am of the opinion that the interpretation given by the majority
to the so-called attestation clause in the present case, as well as the
interpretation given by this Court to a similar attestation clause in
the case of Aldaba vs. Roque, supra, are not exactly correct and warranted.
In the possibility that the testator in the present case, or the person
or persons who prepared the will had relied upon the ruling laid down
in the case of Aldaba vs. Roque, supra,
and that it would now be unfair to reject the present will when in its
preparation a ruling by this Court has1 been followed, I am willing to
admit said will to probate and I concur in the result of the majority
opinion; but I dissent insofar as it holds out and regards the
interpretation given by it of the clause in question, as a doctrine
that may be followed in future cases, especially from now on. I also
believe and hold that for the reasons stated in this concurring and
dissenting opinion, the doctrine laid down in the case of Aldaba vs. Roque, supra, should be abandoned.