SECOND DIVISION
G.R. No. 103554 May
28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO,
PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA
and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
REGALADO, J.:
Presented for resolution by this Court in the present
petition for review on certiorari is the issue of whether or not the
attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article
809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero,
a widower without any children and already in the twilight years of his life,
executed a last will and testament at his residence in Talisay, Cebu before
three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation
of that last will. 1 It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal
properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to
be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding No. 3899-R before
Branch II of the then Court of First Instance of Cebu seeking the probate of
his last will and testament. The probate court set the petition for hearing on
August 20, 1979 but the same and subsequent scheduled hearings were postponed
for one reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by the probate court in its order of
March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and
nieces of the testator, instituted a second petition, entitled "In the
Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said
petition intestate proceeding consolidated with Special Proceeding No. 3899-R
in Branch II of the Court of First Instance of Cebu and opposed thereat the
probate of the Testator's will and the appointment of a special administrator
for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate
court, now known as Branch XV of the Regional Trial Court of Cebu, appointed
William Cabrera as special administrator on June 21, 1983. Thereafter, on July
20, 1983, it issued an order for the return of the records of Special
Proceeding No. 3965-R to the archives since the testate proceeding for the
probate of the will had to be heard and resolved first. On March 26, 1984 the
case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No.
3899-R, herein petitioners appeared as oppositors and objected to the allowance
of the testator's will on the ground that on the alleged date of its execution,
the testator was already in the poor state of health such that he could not
have possibly executed the same. Petitioners likewise reiterated the issue as
to the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified that the
testator executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the oppositors,
Mateo Caballero was in good health and was not unduly influenced in any way in
the execution of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of the testator and of
each other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision
declaring the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos
and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated
the probate of his Will during his lifetime when he caused the filing of the
original petition now marked Exhibit "D" clearly underscores the fact
that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would seem
that despite their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it because
they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit
"C" is the Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law. 9
Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the reason
that its attestation clause is fatally defective since it fails to specifically
state that the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the will and all
the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the attestation
clause in the last will of Mateo Caballero substantially complies with Article
805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having substantialy complied with the
requirements of Art. 805 of the Civil Code. What appears in the attestation
clause which the oppositors claim to be defective is "we do certify that
the testament was read by him and the attestator, Mateo Caballero, has
published unto us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper part
of each page, as his Last Will and Testament, and he has signed the same and
every page thereof, on the spaces provided for his signature and on the left
hand margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the presence of all of
them and of one another. Or as the language of the law would have it that the
testator signed the will "in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the
phrase as formulated is in substantial compliance with the requirement of the
law." 11
Petitioners moved for the reconsideration of the said ruling
of respondent court, but the same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now before us. Petitioners assert that
respondent court has ruled upon said issue in a manner not in accord with the
law and settled jurisprudence on the matter and are now questioning once more,
on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall
shortly hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate after his death. 13
Under the Civil Code, there are two kinds of wills which a testator may
execute. 14 the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805 requires
that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself 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 one another.
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, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation should state the number of 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 the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence
of the testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a
notary public by a testator and the attesting witness. 15 hence it is likewise
known as notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is
blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged.
16
The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that
they should be in writing and must have been executed in a language or dialect
known to the testator. 17
However, in the case of an ordinary or attested will, its
attestation clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even
be known to the attesting witnesses. 18 The last paragraph of Article 805
merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of an ordinary
will whereby the attesting witnesses certify that the instrument has been
executed before them and to the manner of the execution the same. 19 It is a
separate memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. 20
It is made for the purpose of preserving in a permanent form a record of the
facts that attended the execution of a particular will, so that in case of
failure of the memory of the attesting witnesses, or other casualty, such facts
may still be proved. 21
Under the third paragraph of Article 805, such a clause, the
complete lack of which would result in the invalidity of the will, 22 should
state (1) the number of the pages used upon which the will is written; (2) that
the testator signed, or expressly caused another to sign, the will and every
page thereof in the presence of the attesting witnesses; and (3) that the
attesting witnesses witnessed the signing by the testator of the will and all
its pages, and that said witnesses also signed the will and every page thereof
in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages; 23 whereas the subscription of the signature
of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the
witnesses thereby declare the due execution of the will as embodied in the
attestation clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity
thereof. 26 As it appertains only to the witnesses and not to the testator, it
need be signed only by them. 27 Where it is left unsigned, it would result in
the invalidation of the will as it would be possible and easy to add the clause
on a subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons
of the law for requiring the formalities to be followed in the execution of
wills, in the following manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the liberalization
of the manner of their execution with the end in view of giving the testator
more freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo
Caballero shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting
witnesses hereto. 30 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences
and postal addresses appear on the Opposite of our respective names, we do
hereby certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered correlatively in the letters
on the upper part of each page, as his Last Will and Testament and he has the
same and every page thereof, on the spaces provided for his signature and on
the left hand margin, in the presence of the said testator and in the presence
of each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the presence of the testator
and of one another. "Attestation" and "subscription" differ
in meaning. Attestation is the act of senses, while subscription is the act of
the hand. The former is mental, the latter mechanical, and to attest a will is
to know that it was published as such, and to certify the facts required to
constitute an actual and legal publication; but to subscribe a paper published
as a will is only to write on the same paper the names of the witnesses, for
the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation
consists in witnessing the testator's execution of the will in order to see and
take note mentally that those things are done which the statute requires for
the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of identification of such paper as the will
which was executed by the testator. As it involves a mental act, there would be
no means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of
each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the witnesses, likewise
signed the will and every page thereof in the presence of the testator and of
each other. We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of
the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however,
be interpreted as referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the words "he has signed
the same and every page thereof, on the spaces provided for his signature and
on the left hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one another.
It is our considered view that the absence of that statement
required by law is a fatal defect or imperfection which must necessarily result
in the disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the will
invalid if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred therefrom
that the said witness affixed their respective signatures in the presence of
the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to the
will in the presence of the testator and of each other. The execution of a will
is supposed to be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the application of
the substantial compliance rule therein, is correct and should be applied in
the case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to
sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate
proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects
and imperfections must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfections would not render a
will invalid should it be proved that the will was really executed and attested
in compliance with Article 805. In this regard, however, the manner of proving
the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether
oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting witnesses signed
each and every page of the will in the presence of the testator and of each
other. 35 In such a situation, the defect is not only in the form or language
of the attestation clause but the total absence of a specific element required
by Article 805 to be specifically stated in the attestation clause of a will.
That is precisely the defect complained of in the present case since there is
no plausible way by which we can read into the questioned attestation clause
statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages
and that said instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article
809 cannot be revoked or relied on by respondents since it presupposes that the
defects in the attestation clause can be cured or supplied by the text of the
will or a consideration of matters apparent therefrom which would provide the
data not expressed in the attestation clause or from which it may necessarily
be gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other
words, defects must be remedied by intrinsic evidence supplied by the will
itself.
In the case at bar, contrarily, proof of the acts required
to have been performed by the attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall appreciation of the contents of
the will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950,
there was a divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal formalities
required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure.
Said section was later amended by Act No. 2645, but the provisions respecting
said formalities found in Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule.
This was first laid down in the case of Abangan vs. Abangan, 36 where it was
held that the object of 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. Nonetheless, it was also emphasized that 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, hence 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. The subsequent cases of Avera
vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs. Coronel, 40
Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all
adhered to this position.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in the
subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of
Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs.
Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the
occasion to clarify the seemingly conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed,
with these reasons therefor:
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46
Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque
([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152).
In its last analysis, our task is to contrast and, if possible, conciliate the
last two decisions cited by opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that
an attestation clause which does not recite that the witnesses signed the will
and each and every page thereof on the left margin in the presence of the
testator is defective, and such a defect annuls the will. The case of Uy Coque
vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar,
supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate the
fact that the testator and the witnesses reciprocally saw the signing of the will,
for such an act cannot be proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided
impossible to reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely on the
other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the Mojal, decision
was concurred in by only four members of the court, less than a majority, with
two strong dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the second
place, the Mojal decision was promulgated in December, 1924, while the Quintana
decision was promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is
believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed
entirely by statute. The law of the case is here found in section 61 of the
Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the
same Code, as unamended. It is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "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." Codal section 634
provides that "The will shall be disallowed in either of the following
case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so emphatically
and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in the case
of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the seeming diversity
of views that was earlier threshed out therein. The cases of Quinto vs. Morata,
49 Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55
Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez
vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,
64 veered away from the strict interpretation rule and established a trend
toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter
of views and of the undeniable inclination towards a liberal construction,
recommended the codification of the substantial compliance rule, as it believed
this rule to be in accord with the modern tendency to give a liberal approach
to the interpretation of wills. Said rule thus became what is now Article 809
of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities prescribed by Section 618
of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of
the Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the Code of
Civil Procedure, as amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of the formalities
in the execution of wills. This liberal view is enunciated in the cases of
Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No.
46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it
has practically gone back to the original provisions of Section 618 of the Code
of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To
turn this attitude into a legislative declaration and to attain the main objective
of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs.
Murciano, 66 "does not offer any puzzle or difficulty, nor does it open
the door to serious consequences. The later decisions do tell us when and where
to stop; they draw the dividing line with precision. They do not allow evidence
aliunde to fill a void in any part of the document or supply missing details
that should appear in the will itself. They only permit a probe into the will,
an exploration into its confines, to ascertain its meaning or to determine the existence
or absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is
that omissions which can be supplied by an examination of the will itself,
without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence
aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo
is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero)
and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate
Estate of Mateo Caballero) as an active case and thereafter duly proceed with
the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.