G.R. No. 14074. November 07, 1918
IN THE MATTER OF THE PROBATION OF THE WILL OF JOSE RIOSA. MARCELINO CASAS, APPLICANT AND APPELLANT.
MALCOLM, J.:
law existing on the date of the execution of a will, or the law existing at the
death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in the month of
January, 1908, in which he disposed of an estate valued at more than P35,000.
The will was duly executed in accordance with the law then in force, namely,
section 618 of the Code of Civil Procedure. The will was not executed in
accordance with Act No. 2645, amendatory of said section 618, prescribing
certain additional formalities for the signing and attestation of wills, in
force on and after July 1, 1916. In other words, the will was in writing, signed
by the testator, and attested and subscribed by three credible witnesses in the
presence of the testator and of each other; but was not signed by the testator
and the witnesses on the left, margin of each and every page, nor were the pages
numbered correlatively by letters, nor did the attestation state these facts.
The new law, therefore, went into effect after the making of the will and before
the death of the testator, without the testator having left a will that conforms
to the new requirements.
Section 618 of the Code of Civil Procedure reads:
“No will, except as provided in the preceding section, shall be valid to pass
any estate, real or personal, nor charge or affect the same, unless it be in
writing and signed by the testator, or by the testator’s name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of each other. The attestation shall state the fact that the testator signed
the will, or caused it to be signed by some other person, at his that they
attested and subscribed it in his presence and in the presence of each other.
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.”
Act No. 2645 has amended section 618 of the Code of Civil Procedure so as to
make said section read as follows:
“Sec. 618. Requisites of will.—No will, except as provided in the
preceding section, shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written in the language or dialect known
by the testator and signed by him, or by the testator’s name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of each other. The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. 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.”
This court has heretofore held in a decision handed down by the Chief
Justice, as to a will made after the date Act No. 2645 went into
effect, that it must comply with the provisions of this law. (Caraig
vs. Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not
published].) The court has further held in a decision handed down by Justice
Torres, as to a will executed by a testator whose death took place prior to
the operative date of Act No. 2645, that the amendatory act is
inapplicable. (Bona vs. Briones, [1918], 38 Phil., 276.) The instant
appeal presents an entirely different question. The will was executed prior
to the enactment of Act No, 2645 and the death occurred after the enactment of
this law.
There is a clear cleavage of authority among the cases and the text-writers,
as to the effect of a change in the statutes prescribing the formalities
necessary to be observed in the execution of a will, when such change is made
intermediate to the execution of a will and the death of a testator.
(See generally 40 Cyc, 1076, and any textbook on Wills, and Lane’s
Appeal from Probate [1889], 57 Conn., 182.) The rule laid down by the courts in
many jurisdictions is that the statutes in force at the testator’s death are
controlling, and that a will not executed in conformity with such statutes is
invalid, although its execution was sufficient at the time it was made. The
reasons assigned for applying the later statute are the following: “As until the
death of the testator the paper executed by him, expressing his wishes, is not a
will, but a mere inchoate act which may or may not be a will, the law in force
at the testator’s death applies and controls the proof of the will.” (Sutton
vs. Chenault [1855], 18 Ga., 1.) Were we to accept the foregoing
proposition and the reasons assigned for it, it would logically result that the
will of Jose Riosa would have to be held invalid.
The rule prevailing in many other jurisdictions is that the validity of the
execution of a will must be tested by the statutes in force at the time of its
execution and that statutes subsequently enacted have no retrospective effect.
This doctrine is believed to be supported by the weight of authority. It was the
old English view; in Downs (or Downing) vs. Townsend (Ambler, 280),
Lord Hardwicke is reported to have said that “the general rule as to testaments
is, that the time of the testament, and not the testator’s death, is regarded.”
It is alsa the modern view, including among other decisions one of the Supreme
Court of Vermont from which State many of the sections of the Code of Civil
Procedure of the Philippine Islands relating to wills are taken. “(Giddings
vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the opinion by the learned
Justice Sharswood (Taylor vs. Mitchell [1868], 57 Pa. St., 209) is
regarded to be the best considered. In this opinion is found the following:
“Retrospective laws generally if not universally work injustice, and ought to
be so construed only when the mandate of the legislature is imperative. When a
testator makes a will, formally executed according to the requirements of the
law existing at the time of its execution, it would unjustly disappoint his
lawful right of disposition to apply to it a rule subsequently enacted, though
before his death.“While it is true that every one is presumed to know the law, the maxim in
fact is inapplicable to such a case; for he would have an equal right to presume
that no new law would affect his past act, and rest satisfied in security on
that presumption. * * * It is true, that every will is ambulatory until the
death of the testator, and the disposition made by it does not actually take
effect until then. General words apply to the property of which the testator
dies possessed, and he retains the power of revocation as long as he lives. The
act of bequeathing or devising, however, takes place when the will is executed,
though to go into effect at a future time.”
A third view, somewhat larger in conception than the preceding one, finding
support in the States of Alabama and New York, is that statutes relating to the
execution of wills, when they increase the necessary formalities, should be
construed so as not to impair the validity of a will already made and, when they
lessen the formalities required, should be construed so as to aid wills
defectively executed according to the law in force At the time of their making.
(Hoffman vs. Hoffman, [1855], 26 Ala., 535; Price vs. Brown, 1
Bradf., Surr. N. Y., 252.)
This court is given the opportunity to choose between the three rules above
described. Our selection, under such circumstances, should naturally depend more
on reason than on technicality. Above all, we cannot lose sight of the fact that
the testator has provided in detail for the disposition of his property and that
his desires should be respected by the courts. Justice is a powerful pleader for
the second and third rules on the subject.
The plausible reasoning of the authorities which back the first proposition
is, we think, fallacious. The act of bequeathing or devising is something more
than inchoate or ambulatory. In reality, it becomes a completed act when the
will is executed and attested according to the law, although it does not take
effect on the property until a future time.
It is, of course, a general rule of statutory construction, as this court Has
said, that “all statutes are to be construed as having only a prospective
operation unless the purpose and intention of the Legislature to give them a
retrospective effect is expressly declared or is necessarily implied from the
language used. In every case of doubt, the doubt must be resolved against the
retrospective effect.” (Montilla vs. Corporacion de PP. Agustinos
[1913], 24 Phil., 220. See also Chew Heong vs. U. S. [1884],
112 U. S., 536; U. S. vs. American Sugar Ref. Co. [1906], 202 U. S.,
563.) Statute law, as found in the Civil Code, is corroborative; article 3
thereof provides that “laws shall not have a retroactive effect, unless therein
otherwise prescribed.” The language of Act No. 2645 gives no indication of
retrospective effect. Such, likewise, has been the, uniform tendency of the
Supreme Court of the Philippine Islands on cases having special application to
testamentary succession. (Abello vs. Kock de Monasterio [1904], 3 Phil., 558;
Timbol vs. Manalo [1906], 6 Phil., 254; Bonn vs. Briones,
supra; In the Matter of the Probation of the Will of Bibiana Diquiña
[1918], R. G. No. 13176,[1] concerning
the language of the Will. See also section 617, Code of Civil
Procedure.)
The strongest argument against our accepting the first two rules comes out of
section 634 of the Code of Civil Procedure which, in negative terms, provides
that a will shall be disallowed in either of five cases, the first being “if not
executed and attested as in this Act provided.” Act No. 2645 has, of course,
become part and parcel of the Code of Civil Procedure. The will in question is
admittedly not executed and attested as provided by the Code of Civil Procedure
as amended. Nevertheless, it is proper to observe that the general principle in
the law of wills inserts itself even within the provisions of said section 634.
Our statute announces a positive rule for the transference of property which
must be complied with as a completed act at the time of the execution, so far as
the act of the testator is concerned, as to all testaments made subsequent to
the enactment of Act No. 2645, but is not effective as to testaments made
antecedent to that date.
To answer the question with which we began this decision, we adopt as our own
the second rule, particularly as established by the Supreme Court of
Pennsylvania. The will of Jose Riosa is valid.
The order of the Court of First Instance for the Province of Albay of
December 29, 1917, disallowing the will of Jose Riosa, is reversed, and the
record shall be returned to the lower court with direction to admit the said
will to probate, without special findings as to costs. So ordered.
Arellano, C. J., Torres, Johnson, Street, Avanceña, and Fisher,
JJ., concur.
[1] Decided October 26, 1918, still
unpublished.