1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES, SUBSTANTIALLY COMPLIES WITH LAW. — An attestation clause made by the testator himself more than by the instrumental witnesses, but signed by the latter right under the signature of the testator, substantially complies with the requirements of law.

2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN CONSIDERED IN CONNECTION WITH ATTESTATION CLAUSE. — The statement in the penultimate paragraph of the will as to the number of the sheets or pages used is sufficient attestation which may be considered in conjunction with the last paragraph which was herein held as the attestation clause. The law does not require the attestation to be contained in a single clause.

3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT OF TESTAMENTARY WITNESSES. — Where the family physician attended the testatrix during her last illness and saw her on the day when the alleged document of revocation was executed, the testimony of the attesting witnesses tending to imply that the testatrix was of sound mind at the time said document was executed, cannot prevail over the contrary testimony of the attending physician.

On November 27, 1948, Manuela Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix) died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at P150,000.

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942 (Exhibit B — Manuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without impairing the legitimes of the other children.

On December 31, 1948, Manolita G. de Carungcong died in the same court a petition (Special Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1 — Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without impairing the legitimes of the other children.

In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity, they had been revoked by the testatrix in an instrument executed by her on November 18, 1948 (Exhibit 2 — Alejandro and Juan Gonzales), with the result that her estate should be distributed as if she died intestate.

With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one or the other instruments tending to negative their respective positions. After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive pronouncements:jgc:chanrobles.com.ph

"All facts considered in the light of the evidence presented and in the manner in which the witnesses testified the court concludes and holds:jgc:chanrobles.com.ph

"First: That Exhibit B — Manuel Gonzales, though validity executed on November 16, 1942, was revoked by Exhibit 1 — Manolita G. Carungcong in accordance with the provisions of section 623 of the Code of Civil Procedure.

"Second: That Exhibit 2 — Alejandro and Juan Gonzales being executed without the knowledge and testamentary capacity of the testatrix and being contrary to the provisions of section 618 of the Code of Civil Procedure, the said document is hereby declared null and void.

"Third: That Exhibit 1 — Manolita G. Carungcong having been executed in accordance with law the same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate."cralaw virtua1aw library

From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the proportionate share of the printing cost of the record on appeal.

In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the following form and tenor:jgc:chanrobles.com.ph

"IKALABING-DALAWA. Na ang aking Huling BILIN AT TESTAMENTONG ito ay binubuo ng PITONG (7) dahon o pagina na may bilang na sunod-sunod at ang bawa’t dahon o pagina ay mayroong tunay kong lagda o firma, gayon din ang lahat ñg aking saksi o testigos.

"SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite, Filipinas ñgayong ika-5 ñg Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa’t dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa’t isang saksi o testigos at ang lahat at bawa’t isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa’t isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa’t isa sa mga dahon o pagina nitong aking testamento.

" (Sgd.) MANUELA Y. VDA. DE GONZALES

MANUELA IBARRA VDA. DE GONZALES

"Mga Saksi o Testigos:

" (Sgd.) BIENVENIDO DE LOS REYES

"(Sgd.) TAHIMIK T. SAYOC

"(Sgd.) LUIS GAERLAN"

It is contended for the appellants that this will does not contain any attestation clause; that, assuming the concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and not of the witnesses, and because it does not state the number of sheets or pages of the will.

In the very recent case of Valentina Cuevas v. Pilar Achacoso, G. R. No. L-3497, decided May, 1951 * we sustained, finding a precedent in Aldaba v. Roque, 43 Phil., 378, an attestation clause made by the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held:jgc:chanrobles.com.ph

"The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we did is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.

"‘Instrumental witness, as defined by Escriche in his Diccionario Razonada de Legislacion, y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.

"The attestation clause in question bears also similarity with the attestation clause in the will involved in Aldaba v. Roque, (43 Phil, 378). In that case, the attestation clause formed part of the body of the will and its recital was made by the testatrix herself and was signed by her and by the three instrumental witnesses. In upholding the validity of the will, the court said:jgc:chanrobles.com.ph

"‘In reality, it appears that it is the testatrix who makes the declaration about the points in the last paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of Act No. 2645’."cralaw virtua1aw library

Of course three of the Justices of this Court concurred in the result, "in the possibility that the testator in the present case, or the person or persons who prepared the will had relied upon the ruling laid down in the case of Aldaba v. Roque, supra, and that it would now be unfair to reject the present will when in its preparation a ruling of this Court has been followed." But the case at bar still falls within this view, the will (Exhibit 1 — Manolita G. Carungcong) having been executed on May 5, 1945.

The attestation clause contained in the body of the will being thus valid, the statement in the penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is sufficient attestation which may be considered in conjunction with the last paragraph. It is significant that the law does not require the attestation to be contained in a single clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed, as in this case.

The result reached in respect of the sufficiency of the will (Exhibit 1 — Manolita G. Carungcong) necessarily disposes of the contention of appellant Manuel Gonzales that the trial court erred in not admitting to probate the will (Exhibit B — Manuel Gonzales), since the latter will must be considered revoked by the subsequent will (Exhibit 1 — Manolita G. Carungcong).

What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1 — Manolita G. Carungcong) has been revoked by the testatrix in the instrument of November 18, 1948 (Exhibit 2 — Alejandro and Juan Gonzales) which provides as follows:jgc:chanrobles.com.ph

"Ako, MANUELA YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng Rizal, may mahusay at wastong pagiisip at mabuting pagtatanda, sa pamamaguitan ng kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko at ipinahahayag sa ñgayon sa alin mang testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan ko ng saysay at kabuluhang lahat pagkat hindi iyong ang tunay kong kalooban ñgayon.

"‘Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito 1948, dito sa ciudad ng Pasay’."cralaw virtua1aw library

Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation, and their contention was sustained by the trial court. We have examined the record and found no valid reason for reversing the finding of said court which had the benefit of observing and hearing the witnesses testify. Upon the other hand, the following considerations amply support the appealed decision:chanrob1es virtual 1aw library

1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital authorities (Exhibit E — Manuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged instrument of revocation was executed by her, the testatrix was in a comatose and unconscious state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the physical condition of the testatrix up to November 18, 1948:jgc:chanrobles.com.ph

"P.