Republic of the Philippines


G.R. No. L-4888             May 25, 1953

JOSE MERZA, petitioner,

Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.


This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of Zambales denying the probate of the last will and testament and
so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix was survived by the husband and collateral relatives, some of whom, along with the husband, were disinherited in Exhibit B for the reasons set forth therein.

The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the local dialect known to the testatrix, the attestation clause, as translated into English in the record on appeal, reads:

The foregoing instrument consisting of three pages, on the date above-mentioned, was executed, signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and testament; that in our presence and also in the very presence of the said testatrix as likewise in the presence of two witnesses and the testatrix each of us three witnesses signed this a testament.

The opponent objected that this clause did not estate that the tetratrix and the witnesses had signed each and every page of the will or that she had signed the instrument in the presence of the witnesses. The Appellate Court dismissed the first objection, finding that "failure to estate in the attestation clause in question that the testatrix and/or the witnesses had signed each and every page of Exhibit A were cured by the fact that each one of the page of the instrument appears to be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But granting the correctness of the premise, the court held the second objection well taken and thus concluded: "The question whether the testatrix had signed in the presence of said witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the require statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by proof aliunde even if admitted without any objection."

The premise of the conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poor drawn, its language exceedingly ungrammatical to the point of being difficult to understand; but from a close examination of the whole context in relation to its purpose the implication seems clear that the testatrix signed in the presence of the witnesses. Considering that the witnesses' only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors of the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the phrase "in our presence," used as it was in connection with the process of signing, can not imply anything but the testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could not be other than signed and the subject no other than the testatrix.

The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses sign in the presence of the testatrix and of one another, so the testatrix sign in similar or like manner in their presence.

In consonance with the principle of the liberal interpretation, adhered to in numerous later decision of this Court and affirmed and translated into inactment in the new Civil Code (Article 827), we are constrained to hold the attestation clause under consideration sufficient and valid.

"Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the word of the statue be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.)

"It could have been the intention of the legislature in providing for the essential safeguards in the execution of a will to shackle the very right of the testamentary disposition which the law recognizes and holds sacred." (Leynes vs. Leynes, supra.)

With reference of Exhibit B the Court of Appeal agreed with the trial court that the document having been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the content of Exhibit B are couched in the language of ordinarily used in a simple affidavit and as such, may not have the legal effect and force to a testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any instrument other than the will of Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil code of Spain as "the act by which a persons dispose of all his property or a portion of it," and in article 783 of the new Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Exhibit B comes within this definition.

Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate as an independent testementary desposition. In the absence of any legal provision to the contrary and there is none in this jurisdiction it is the general, well-established rule that two separate and distinct wills may be probated if one does not revoke the other (68 C.J., 885) and provided that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As seen, Exhibit B embodied all the requisites of a will, even free of such formal of literary imperfections as are found in Exhibit A.

It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to insinuate, require that the disinheritance should be accomplished in the same instrument by which the maker provides the disposition of his or her property after his or death. This article merely provides that "disinheritance can be affected only by a will (any will) in which the legal cause upon which it is based is expressly stated."

It is our judgment therefore that the instruments Exhibit A and B admitted to probate, subject of courts to the right of the disinherited person under particle 850 to contest the disinheritance, and it is so ordered, with costs against the appellee.

Paras, C.J., Feria, Pablo, Bengzon, Bautista Angelo and Labrador, JJ., concur.

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