EN BANC
[G.R. No. L-2415. July 31, 1950. ]
Testate estate of the late Paula Toray. EUSTAQUIA TENEFRANCIA, Petitioner-Appellant, v. ROSA ABAJA, Oppositor-Appellee.
Ditching & Ditching for Petitioner-Appellant.
Romeo C. Castillo for Oppositor-Appellee.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE FAILS TO STATE THAT TESTATOR SIGNED WILL IN THE PRESENCE OF WITNESSES. — Among the formalities prescribed by law (section 618 of Act No. 190, as amended by Act No. 2645) to a valid will is the requirement that the attestation clause should state "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." This requirement was not complied with in the present case, for the attestation clause fails to state that fact.
2. ID.; WHAT IS MEANT BY ATTESTATION CLAUSE. — By the attestation clause is meant "that clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same." (Black, Law Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by the witness and not by the testator. And the law is clear that it is the attestation clause that must contain a statement, among others that the testator signed the will in the presence of the witnesses. Without that statement, the attestation clause is fatally defective.
2. ID.; WHAT IS MEANT BY ATTESTATION CLAUSE. — By the attestation clause is meant "that clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same." (Black, Law Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by the witness and not by the testator. And the law is clear that it is the attestation clause that must contain a statement, among others that the testator signed the will in the presence of the witnesses. Without that statement, the attestation clause is fatally defective.
D E C I S I O N
REYES, J.:
This is an appeal from an order of the Court of First Instance of Negros Occidental denying probate of a will.
The will in question purports to have been executed in August, 1943, by Paula Toray, who died the following month. Presented for probate by one of the legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa Abaja, daughter of the deceased Eulogia Abaja, instituted heir in an earlier will executed by the same testatrix and her deceased husband. The lower court disallowed the will on the ground that it was not executed in accordance with law in that the attestation clause did not state that the testatrix signed the will in the presence of the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as amended by Act No. 2645) to a valid will is the requirement that the attestation clause should state "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." This requirement was not complied with in the present case, for the attestation clause fails to state that fact. This is obvious from the following agreed translation of the said attestation clause:jgc:chanrobles.com.ph
"Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao, todos vecinos del Barrio Inayauan, Cawayan, Negros Occidental, Filipinas, testigos de este testamento, testificamos que Paula Toray, la testadora que declaro que este es su testamento o
The will in question purports to have been executed in August, 1943, by Paula Toray, who died the following month. Presented for probate by one of the legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa Abaja, daughter of the deceased Eulogia Abaja, instituted heir in an earlier will executed by the same testatrix and her deceased husband. The lower court disallowed the will on the ground that it was not executed in accordance with law in that the attestation clause did not state that the testatrix signed the will in the presence of the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as amended by Act No. 2645) to a valid will is the requirement that the attestation clause should state "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." This requirement was not complied with in the present case, for the attestation clause fails to state that fact. This is obvious from the following agreed translation of the said attestation clause:jgc:chanrobles.com.ph
"Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao, todos vecinos del Barrio Inayauan, Cawayan, Negros Occidental, Filipinas, testigos de este testamento, testificamos que Paula Toray, la testadora que declaro que este es su testamento o
