IN RE: PETITION FOR THE PROBATE OF THE WILL OF THE DECEASED LEONA SINGSON. MANUEL SINGSON, PETITIONER AND APPELLEE, VS. EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, AND JOSEFI…

This is an appeal from a decision of the Court of First
Instance of Ilocos Sur admitting to probate the last will and testament of the
late Leona Singson.

On January 13, 1948, Leona Singson died in Vigan Ilocos Sur,
leaving a will. In said will the deceased instituted as heirs her brothers
Evaristo, Dionisio and Manuel, her nieces Rosario F. de Donato, Emilia
Florentino and Trinidad Florentino de Paz, her grandniece Consolacion
Florentino, and some servants. She named her brothers Evaristo and Manuel as
executors of the will. On February 2, 1948, Manuel Singson filed a petition for
the probate of said will.

On March 6, 1948, Emilia Florentino, Trinidad Florentino de Paz
and Josefina Florentino Vda. de Lim, daughters of a sister of the deceased,
opposed the petition alleging among other grounds that the signatures appearing
in the will are not the genuine signatures of the deceased, and that the will
has not been executed in accordance with the formalities of the law.

After due trial, the court found that the will has been
executed in accordance with law and admitted the same to probate. The oppositors
appealed to the Court of Appeals, but the case was later certified to this court
for the reason that it involves purely questions of law.

The first error assigned refers to the admission by the lower
court of the deposition of Fidel Reyes, an instrumental witness, which was taken
because he was then suffering from paralysis and was thus physically
incapacitated to appear and testify in court. It is the claim of the oppositors
that, under section 11, Rule 77 of the Rules, if the will is contested, all the
subscribing witnesses present in the Philippines must be produced and examined,
and if they are dead, absent or insane, this fact must be satisfactorily shown
to the court. If a subscribing witness is present in the Philippines but outside
the province where the will has been filed, his deposition must be taken. In
this case Fidel Reyes was not outside of the province, in fact he was then
living in the place where the ease was pending trial. He, therefore, must appear
in court and his deposition cannot be taken. And so they contend that the lower
court erred in admitting his deposition instead of taking his testimony.

It should be noted that one of the three instrumental witnesses
of the will, namely, Bonifacio Brillantes, was already dead when the case came
up for trial and the only witnesses then available were Victoriano Lazo and
Fidel Reyes who was then unable to appear because of his physical ailment. And
when this matter was brought to the knowledge of the court, the latter
manifested its desire to go to the house of the ailing witness for the taking of
his testimony, but the move was prevented because of the conformity of counsel
for the oppositors to the taking of his deposition. And because of this
conformity, the deposition was taken and on that occasion opposing counsel was
present and actually took part in the taking of the deposition. In the face of
these facts, we opine that, while the taking of the deposition was not made in
strict compliance with the rule (section 11, Rule 77), the deficiency, if any,
has been cured by the waiver evinced by counsel for the oppositors which
prevented the court from constituting itself in the residence of the
witness.

We believe, however, that the deposition may also be justified
by interpreting section 11, Rule 77, in connection with Rule 18, section 4 (c),
of the Rules, relative to the taking of the deposition of a witness in ordinary
cases when he is unable to testify because of sickness. Interpreting and
harmonizing together these two provisions we may draw the conclusion that even
if an instrumental witness is within the seat of the court but is unable to
appear because of sickness, as in this case, his deposition may still be taken,
for a different interpretation would be senseless and impractical and would
defeat the very purpose which said Rule 77 intends to serve.

Another point raised by oppositors refers to the alleged
failure of the attestation clause to state the number of the sheets or pages in
which the will is written which, it is claimed, is fatal because it is contrary
to the express requirement of the law.

The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the will is written,
which requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of the
will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca,
43 Phil, 405; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil.,
481; Echavarria vs. Sarmiento, 66 Phil., 611). The ratio decidendi of these
cases seems to be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the
attestation clause does not state the number of sheets or pages upon which the
will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely technical
considerations.

One of such cases is De Gala vs. Gonzales and Ona, 53 Phil.,
104. Here one of the objections raised was that, the attestation clause does not
state that the will had been signed in the presence of the witnesses although
this fact appears in the last paragraph of the body of the will, and the Court,
in overruling the objection, said that “it may be conceded that the attestation
clause is not artistically drawn and that, standing alone, it does not quite
meet the requirements of the statute, but taken in connection with the last
clause of the body of the will, it is fairly clear and sufficiently carries out
the legislative intent; it leaves no possible doubt as to the authenticity of
the document”.

Another case that may be cited is Mendoza vs. Pilapil (72
Phil., 546). In this case, the objection was that the attestation clause does
not state the number of pages upon which the will was written, and yet the court
held that the law has been substantially complied with inasmuch as in the body
of the will and on the same page wherein the attestation clause appears written
it is expressly stated that that will contains three pages each of which was
numbered in letters and in figures. Said the court:

“El proposito de la ley al establecer las formalidades que se
requieren en un testamento, es indudablemente asegurar y garantizar su
autenticidad contra la mala fe y el fraude, para evitar que aquellos Que no
tienen derecho a suceder al testador, le suceden y salgan beneficiados con la
legalization del mismo. Se ha cumplido dicho proposito en el caso de que se
viene hablando porque, en el mismo cuerpo del testamento y en la misma pagina
donde aparece la clausula de atestiguamiento, o sea la tercera, se expresa que
el testamento consta de tres paginas y porque cada rnia de las dos primeras
lleva en parte la nota en letras, y en parte la nota en guarismos, de que son
respectivamente la prhnera y segmida paginas del mismo Estos hechos excluyen
evidentemente todo temor, toda sospecha, o todo asomo de duda de que se haya
sustituido alguna de sus paginas con otra.” (Mendoza vs. Pilapil, 72 Phil.,
546.)

Considering the form in which the will in question is written
in the light of the liberal ruling above adverted to, the conclusion is
inescapable that the will has been drafted in substantial compliance with the
law. This opinion is bolstered up when we examine the will itself which shows on
its face that it is really and actually composed of eight pages duly signed by
the testatrix and her instrumental witnesses.

The remaining question to be determined is: does the
attestation clause state that the testatrix signed each and every page of the
will in the presence of the three instrumental witnesses as required by law?

The disputed attestation clause reads as follows:

“Nosotros los testigos, conforme al niego de Da. Leona Singson,
en este testamento, despues de anunciarnos que este es su testamento donde hizo
sus ordenes sobre su verdadera y ultima voluntad, firmo e imprimis su marca
digital en presencia de todos nosotros; y nosotros firmamos tambien en presencia
de ella y delante de cada uno de nosotros al pie del citado testamento y en el
margen izquierdo de sus otras paginas. Y hemos observado que Da. Leona Singson
estaba en su sano juicio, pensamiento y uso de sus sentidos. (Exh. A-1).”

A perusal of the above attestation clause would at first glance
give the impression that the testatrix merely signed or stamped her thumbmark on
the will in the presence of the witnesses, without stating the place where her
signature or thumbmark had been affixed, which impression is caused by the fact
that right after the sentence firmo e imprimho su marca digital en presencia de
todos nosotros, there appears a semicolon; but if this semicolon is disregarded,
we would at once see that the testatrix signed or affixed her thumbmark not only
at the bottom of the will but also on the left margin of each and every page
thereon, considering the concluding part of the sentence concerning the signing
of the will. That semicolon undoubtedly has been placed there by mistake or
through inadvertence, as may be deduced from the use of the word tambien made
by the witnesses in the sentence immediately following, which conveys the idea
of oneness in action both on the part of the testatrix and the witnesses. Thus
considered and interpreted, the attestation clause complies substantially with
the law.

“The appellants earnestly contend that the attestation clause
fails to show that the witnesses signed the will and each and every page thereof
because it simply says ‘que nosotros los testigos hemos tambien firmado en
presencia de la testadora y en la presencia del uno al otro’ (that we the
witnesses also signed in the presence of the testatrix and of each other).

“In answer to this contention it may be said that this portion
of the attestation clause must be read in connection with the portion preceding
it, which states that the testatrix signed the will and on all the margins
thereof in the presence of the witnesses; especially, because the word also used
therein establishes a very close connection between said two portions of the
attestation clause. This word also should, therefore, be given in its full
meaning which, in the instant case, is that the witnesses signed the will in the
same manner as the testatrix did. The language of the whole attestation clause,
taken together, clearly shows that the witnesses signed the will and on all the
margins thereof in the presence of the testatrix and of each other.” (Key vs.
Cartagena, 56 Phil., pp. 282, 284.)

In view of the foregoing, we find that the lower court did not
commit any of the errors assigned by appellants and, therefore, we affirm the
decision appealed from, with costs.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, and
Labrador, JJ., concur.
Jugo, J., concurs in the result.