EUTIQUIA AVERA, PETITIONER AND APPELLEE, VS. MARINO GARCIA, AND JUAN RODRIGUEZ, AS GUARDIAN OF THE MINORS CESAR GARCIA AND JOSE GARCIA, OBJECTORS AND APPELLANTS.

In proceedings in the court below,
instituted by Eutiquia Avera for probate of the will of one Esteban
Garcia, contest was made by Marino Garcia and Juan Rodriguez, the
latter in the capacity of guardian for the minors Jose Garcia and Cesar
Garcia. Upon the date appointed for the hearing, the proponent of the
will introduced one of the three attesting witnesses who testified—with
details not necessary to be here specified—that the will was executed
with all necessary external formalities, and that the testator was at
the time in full possession of disposing faculties. Upon the latter
point the witness was corroborated by the person who wrote the will at
the request of the testator. Two of the attesting witnesses were not
introduced, nor was their absence accounted for by the proponent of the
will.

When the proponent rested the attorney for the opposition
introduced a single witness whose testimony tended to show in, a vague
and indecisive manner that at the time the will was made the testator
was so debilitated as to be unable to comprehend what he was about.

After the cause had been submitted for determination upon the proof
thus presented, the trial judge found that the testator at the time of
the making of the will was of sound mind and disposing memory and that
the will had been properly executed. He accordingly admitted the will
to probate.

From this judgment an appeal was taken in behalf of the persons
contesting the will, and the only errors here assigned have reference
to the two following points, namely, first, whether a will can be
admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question
is rendered invalid by reason of the fact that the signature of the
testator and of the three attesting witnesses are written on the right
margin of each page of the will instead of the left margin.

Upon the first point, while it is undoubtedly true that an
uncontested will may be proved by the testimony of only one of the
three attesting witnesses, nevertheless in Cabang vs.
Belfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest
is instituted, all of the attesting witnesses must be examined, if
alive and within reach of the process of the court.

In the present case no explanation was made at the trial as to why
all three of the attesting witnesses were not produced, but the
probable reason is found in the fact that, although the petition for
the probate of this will had been pending from December 21, 1917, until
the date set for the hearing, which was April 5, 1919, no formal
contest was entered until the very day set for the hearing; and it is
probable that the attorney for the proponent, believing in good faith
that probate would not be contested, repaired to the court with only
one of the three attesting witnesses at hand, and upon finding that the
will was contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were
not produced, it does not in itself supply any basis for changing the
rule expounded in the case above referred to; and were it not for a
fact now to be mentioned, this court would probably be compelled to
reverse this case on the ground that the execution of the will had not
been proved by a sufficient number of attesting witnesses.

It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of the cause
for determination in that court or upon the occasion of the filing of
the motion for a new trial. Accordingly it is insisted for the appellee
that this question cannot now be raised for the first time in this
court. We believe this point is well taken, and the first assignment of
error must be declared not to be well taken. This exact question has
been decided by the Supreme Court of California adversely to the
contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of McCarty, 58 Cal.,
335, 337.)

There are at least two reasons why the appellate tribunals are
disinclined to permit certain questions to be raised for the first time
in the second instance. In the first place it eliminates the judicial
criterion of the Court of First Instance upon the point there presented
and makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial.
In the second place, it permits, if it does not encourage, attorneys to
trifle with the administration of justice by concealing from the trial
court and from their opponent the actual point upon which reliance is
placed, while they are engaged in other discussions more simulated than
real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would prove an
embarrassment to this court in the administration of justice in the
future. In one way or another we are constantly here considering
aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the
correct decision of the cases brought before it. What we mean to
declare is that when, we believe that substantial justice has been done
in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound discretion
ignore such question upon appeal; and this is the more proper when the
question relates a defect which might have been cured in the Court of
First Instance if attention had been called to it there. In the present
case, if the appellant had raised this question in the lower court,
either at the hearing or upon a motion for a new trial, that court
would have had the power, and it would have been its duty, considering
the tardy institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought into court. .
But instead of thus calling the error to the attention of the court and
his adversary, the point is first raised by the appellant in this
court. We hold that this is too late.

Properly understood, the case of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for it
appears from the opinion in that case that the proponent of the will
had obtained an order for a republication and new trial for the avowed
purpose of presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless subsequently failed
without any apparent reason to take their testimony. Both parties in
that case were therefore fully apprised that the question of the number
of witnesses necessary to prove the will was in issue in the lower
court,

The second point involved in this case is whether, under section
618 of the Code of Civil Procedure, as amended by Act No. 2645, it is
essential to the validity of a will in this jurisdiction that the names
of the testator and the instrumental witnesses should be written on the
left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the
opinion that the will in question is valid. It is true that the statute
says that the testator and the instrumental witnesses shall sign their
names on the left margin of each and every page; and it is undeniable
that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with.
The same doctrine is also deducible from cases heretofore decided by
this court.

Still some details at times creep into legislative enactments which
are so trivial that it would be absurd to suppose that the Legislature
could have attached any decisive importance to them. The provision to
the effect that the signatures of the testator and witnesses shall be
written on the left margin of each page—rather than on the right
margin—seems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no
possible difference whether the names appear on the left or no the
right margin, provided they are on one or the other. In Caraig vs.
Tatlonghari (R. G. No. 12558, decided March 23,1918, not reported),
this court declared a will void which was totally lacking in the
signatures required to be written on its several pages; and in the case
of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared
void which contained the necessary signatures on the margin of each
leaf (folio), but not in the margin of each page containing written matter.

The instrument now before us contains the necessary signatures on
every page, and the only point of deviation from the requirement of the
statute is that these signatures appear in the right margin instead of
the left. By the mode of signing here adopted every page and provision
of the will is authenticated and guarded from possible alteration in
exactly the same degree that it would have been protected by being
signed in the left margin; and the resources of casuistry could be
exausted without discovering the slightest difference between the
consequences of affixing the signatures in one margin or the other.

The same could not be said of a case like that of Estate of Saguinsin, supra,
where only the leaves, or alternate pages, were signed and not each
written page; for as observed in that case by our late lamented Chief
Justice, it was possible that in the will as there originally executed
by the testatrix only the alternative pages had been used, leaving
blanks on the reverse sides, which conceivably might have been filled
in subsequently.

The controlling considerations on the point now before us were well stated in Re
will of Abangan (40 Phil., 476, 479), where the court, speaking through
Mr. Justice Avancenia, in a case where the signatures were placed at
the bottom of the page and not in the margin, said:

“The object oT the solemnities surrounding the
execution of 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 last will, must be disregarded.”

In the case before us, where ingenuity could not suggest any
possible prejudice to any person, as attendant upon the actual
deviation from the letter of the law, such deviation must be considered
too trivial to invalidate the instrument.

It results that the legal errors assigned are not sustainable, and
the judgment appealed from will be affirmed. It is so ordered, with
costs against the appellants.

Johnson, Araullo, Avancena, and Villamor, JJ., concur.