WILLS; ATTESTATION CLAUSE; FAILURE TO STATE THAT TESTATOR SIGNED IN THE PRESENCE OF WITNESSES. — The flaw attributed to the attestation clause in question is that, although the witnesses stated that the testator signed the will and on both pages at the left hand margin, they did not certify that the testator signed "in the presence of the instrumental witnesses." Held: The attestation clause is sufficient, following the later trend. The word "we" in the last sentence of the attestation clause, although expected to relate to the attesting witnesses, may also refer both to the testator and to the attesting witnesses, who moreover could not have certified — as they did — that the testator signed the will and all pages thereof at the left hand margin, if said testator did not sign in their presence.

Enrique C. Zuñiga died on December 31, 1945, leaving a will with the following attestation clause:jgc:chanrobles.com.ph

"That we, the undersigned witnesses, hereby certify that these LAST WILL AND TESTAMENT consisting of two pages written in two sheets, each sheet composing a page, including the page in which this attestation clause is written; that each page is correlatively numbered in letters in the middle of the upper part of each page; and that the Testator signed the will and on both pages at the left hand margin of the page; and that we also signed at the left hand margin of the will on both pages in the presence of the Testator and in the presence and within sight of each other."cralaw virtua1aw library

Said will was presented in the Court of First Instance of Quezon for probate by Rosario Dia, wife of the testator. The petition for probate was opposed by Juan Zuñiga and Faustina Calanog, parents of the testator. In the decision of the Court of First Instance rendered on April 12, 1946, the will was admitted to probate. The oppositors have appealed, raising the sole contention that the trial court erred "in admitting to probate the will and last testament of Enrique C. Zuñiga, despite the defect that the attestation clause does not state that the testator signed the will and each page thereof in the presence of the three instrumental witnesses, and in declaring that said defect was cured by the oral testimony of the instrumental witnesses." The appellants invoke the case of Quinto v. Morata, 54 Phil., 481, wherein it was held that the attestation clause must be made in strict conformity with the requirements of section 618 of Act No. 190, as amended, and evidence aliunde should not be admitted to establish facts not appearing in the attestation clause.

As already stated, the flaw attributed to the attestation clause in question is that, although it states that the testator signed the will and on both pages at the left hand margin, it does not certify that the testator signed "in the presence of the instrumental witnesses." In decisions of this Court posterior to the case relied upon by the appellants, the probate of wills containing attestation clauses similarly assailed, had been sustained. In Estate on the Deceased Magdalena Ozoa, G.R. No. 37208, 58 Phil., 928, in which it was contended that the attestation clause failed to state that the testatrix signed each and every page of the will in the presence of the three witnesses and in the presence of each other, the following ruling was made: "While the words ’we have each signed, the same and each page thereof in the presence of said testatrix and in the presence of each other’ would be expected to relate to the attesting witnesses, it is possible to find that the quoted words also relate to the testatrix. Otherwise stated, the word ’we’ could include both the testatrix and the attesting witnesses." (Quoted in Sebastian v. Pañganiban, 59 Phil., 653, 655.)

In the latter case of Sebastian v. Pañganiban, wherein the argument was advanced that the attestation clause failed to state that the witnesses signed the will in the presence of each other, this Court, citing the Ozoa decision, upheld the probate of the will.

Following the later trend, we are constrained to sustain the appealed judgment. Indeed, the word "we" in the last sentence of the attestation clause in dispute, above quoted, although expected to relate to the attesting witnesses, may also refer both to the testator and to the attesting witnesses. It is likewise obvious that the attesting witnesses could not have certified — as they did — that the testator signed the will and all pages thereof at the left hand margin, if said testator did not sign in their presence. The case, ultimately, is one more or less of grammatical imperfection.

Wherefore, the appealed judgment is affirmed with costs of this instance against the appellants. So ordered.

Feria, Bengzon, Tuason, Montemayor, Jugo and Bautista Angelo, JJ., concur.



PABLO, M., disidente:chanrob1es virtual 1aw library

En mi opinion, no debe legalizarse el testamento del finado Enrique C. Zuñiga, porque no aparece en la clausula de atestiguamiento que el testador haya firmado el testamento en presencia de los tres testigos presenciales. Esto es un requisito indispensable. La ley exige que el testador firme el testamento en presencia de tres o mas testigos para evitar que un testamento firmado por un testador en presencia de nadie pueda despues ser legalizado si, a peticion de alguien, tres testigos firman la clausula de atestiguamiento aseverando que cada uno de los tres firmo la clausula en presencia de cada uno de ellos. Con esta clase de certificacion de tres personas es facil legalizar un testamento apocrifo. En el caso citado, los tres testigos que firman la clausula de atestiguamiento no mienten porque no certifican que el testador firmo el testamento en su presencia. Supongase que un testador haya firmado su testamento en presencia de nadie y por s