EN BANC
G.R. No. L-14074
November 7, 1918
In the matter of the probation of the will of Jose Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue
which this appeal presents is whether in the Philippine Islands the 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 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 express direction, in
the presence of three witnesses, and 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 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 execute 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
also the modern view, including among other decisions one of the Supreme Court
of Vermont from which State many of the sections of the Code if 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.lawphil.net
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
restrospective 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 Monaterio [1904], 3 Phil., 558; Timbol vs. Manalo [1906], 6 Phil.,
254; Bona 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 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.
Footnotes
1 Decided October 26, 1918, still unpublished.
