Testate estate of CARLOS GIL, deceased. ISABEL HERRERO VDA.

DE GIL,
administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.

FACTS:

Carlos Gil executed a last will and testament. After his death, it was presented for
probate in the Court of First Instance of Manila. This was opposed by his nephew,
Roberto Toledo y Gil and sister, Pilar Vda. de Murciano. Toledo was eliminated from the
case since he has no legal right to intervene.

The will was initially destroy and was reconstituted. The parties all agree that the
reconstituted will is a copy of the original will. In the said will, the attestation clause does
not state that the testator signed the will. It only declares that it was signed by the
witnesses. Despite this defect, the Court of First Instance admitted to probate the will.
Pilar opposed such probate and appealed the decision of CFI to the Supreme Court. The
latter, reversed the decision of the CFI. Not contended with the decision, Isabel Herreros
Vda. de Gil, the administratrix, filed a motion for reconsideration to the Supreme Court.

CONTENTIONS:

ADMINISTRATRIX-APPELLEE:

Isabel Herreros Vda. de Gil, the administratrix, contends that defective attestation
clause may be cured by inferring in the other parts of the will and inserting a missing
phrase to complete the whole meaning of the attestation clause. She also claims that the
court may correct clerical errors in a will as evidence by the earlier decisions of the
Supreme Court.

OPPOSITOR-APPELLANT.
 Pilar, on the other hand, contends that the will should not be probated since the
will did not comply with the requirement of Section 618 of the Code of Civil Procedure,
as amended, which provides that "The attestation clause 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." Secondly,
the earlier decision of the Supreme Court in this case stated that the defect in the
attestation clause is a fatal and not just a mere clerical error for it affects the very essence
of the clause. Thus, the defect cannot be cured by inference to the will itself

ISSUE:

Whether or not the will is valid despite its defective attestation clause?

HELD:

The will is valid. It seems obvious that the missing phrase was left out from the
copy. The problem posed by the omission in question is governed, not by the law of wills
which require certain formalities to be fulfilled in the execution but by the rules of
construction applicable to statutes and documents in general. The court may and should
correct the error by supplying the omitted word or words.

It has been said, and experience has shown, that the mechanical system of
construction has operated more to defeat honest wills than prevent fraudulent ones. That
would be the effect in this case if the will under consideration were rejected for the adverse
party now concedes the genuineness of the document. The genuineness is super
obvious, and there is not the slightest insinuation of undue pressure, mental incapacity of
the testator or fraud.

Coming to the execution of wills, the Supreme Court saw no legitimate, practical
reason for objecting to the testator instead of the witnesses certifying that he signed the
will in the presence of the latter. The will is of the testator’s own making, the intervention
of attesting witnesses being designed merely to protect his interest.
 Abangan v. Abangan, 40 Phil 476, AVANCENA
On September 19, 1917, CFI of Cebu admitted to probate Ana Abangan’s will executed July, 1916. From this
decision the opponents appealed.

The will consists of 2 sheets. The first contains all the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the three witnesses, nor numbered by letters. These omissions,
according to appellants’ contention, are defects whereby the probate of the will should have been denied.

Whether or not the will was duly admitted to probate.

YES. In requiring that each and every sheet of the will be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 evidently has for its object the avoidance of substitution of any
of said sheets which may change the disposition of the testatrix. But when these dispositions are wholly written on
only one sheet (as in the instant case) signed at the bottom by the testator and three witnesses, their signatures on
the left margin of said sheet are not anymore necessary as such will be purposeless.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although unnumbered, cannot be hidden.

In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at
the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged.

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 guaranty their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these primordal 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 frustative of the testator’s last will, must be
disregarded.

German Jaboneta vs. Ricardo Gustilo, et al.

G.R. No. 1641
Justice Carson

DOCTRINE

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 shall 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 witnesses, it shall be interpreted to
them.

SPECIFIC ISSUE

Whether or not the subscribing witnesses, in compliance with Art. 805 of the New Civil Code,
must actually witness (on their eyes) the signing of the instrument by the other witnesses.

HOW DID THE SC DECIDE ON THE ISSUE BASED ON THE DOCTRINE

The fact that Isabelo Jena (one of the witnesses) was still in the room when he saw Julio Javellana
(another of the witnesses) moving his hand and pen in the act of affixing his signature to the will,
taken together with the testimony of the remaining witnesses which shows that Julio Javellana
did in fact there and then sign his name to the will, convinces the SC that the signature was affixed
in the presence of Isabelo Jena. The purpose of a statutory requirement that the witness sign in
the presence of the testator is said to be that the testator may have ocular evidence of the
identity of the instrument subscribed by the witness and himself, and the generally accepted
tests of presence are vision and mental apprehension. The true test of vision is not whether the
testator actually saw the witness sign, but whether he might have seen him sign, considering his
mental and physical condition and position at the time of the subscription. These principles are
equally applicable in determining whether the witnesses signed the instrument in the presence
of each other, as required by the statute. Applying these to the facts of the case, SC is in the
opinion that the statutory requisites as to the execution of the instrument were complied with.

Rosa K. Kalaw, petitioner, vs.

Hon. Judge Benjamin RELOVA
and Gregorio K. KALAW, respondents.
G.R. No. L-40207, September 28, 1984.
FACTS:

Natividad K. Kalaw made a holographic will executed on December 24, 1968. Originally, the will named Rosa K. Kalaw,
sister of Natividad, as the sole heir. However, Natividad eventually changed the name on the will by crossing out Rosa’s
name and replacing it with Gregorio K. Kalaw as sole heir instead. Natividad failed to properly authenticate such
alteration with her full signature.
Because of this, the parties decided to submit the holographic will for an examination by the National Bureau of
Investigation. The Bureau’s findings confirmed that the original writings and those of the alterations were written by the
same person.

Rosa argued that the probate should be denied since the alteration on the will is invalid for failing to comply with Art.
814 which states that “In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must
authenticate the same by his full signature”. Further, Rosa asserted that the will should be probated on its original
content before the alteration was made.

Gregorio contends that the mere fact that Rosa agreed to submit the will for examination estoppes her from questioning
the validity of the alteration and invoking Art. 814 of the Civil Code.

Judge Benjamin Relova denied the probate on the will.

Rosa now sought for the probate on the will as to its original unaltered text.

ISSUE:

May the will, in case of alterations, corrections, or cancellations, without the proper authentication, be submitted for
probate as to the original content prior to such alteration, correction, or cancellation.

RULING:

No, this cannot be done.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will
have not been noted under his signature, the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was
altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication
by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain valid.

To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner
required by law by affixing her full signature. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude.