[ G.R. No. 26135. March 03, 1927 ] 50 Phil. 30
[ G.R. No. 26135. March 03, 1927 ]
IN RE WILL OF EUSTAQUIO HAGORILES. PETRONILO GUMBAN, PETITIONER AND APPELLEE, VS. INOCENCIA GORECHO ET AL., OPPONENTS AND APPELLANTS. D E C I S I O N
MALCOLM, J.:
This is an appeal by the widow, Inocencia Gorecho, and eighteen other opponents, from an order of the Court of First Instance of Iloilo probating the document presented by Petronilo Gumban as the last will and testament of the deceased Eustaquio Hagoriles. Among the errors assigned is included the finding of the trial court that the alleged will was prepared in conformity with the law, notwithstanding it did not contain an attestation clause stating that the testator and the witnesses signed all the pages of the will. In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with in the Matter of the Estate of Saguinsin ([1920], 41 Phil., 875), continuing with in In re Will of Andrada ([1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with in Saño vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil, 152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two decisions cited by opposing counsel, namely, those of Saño vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra. In the case of Saño vs. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must state the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident fact does not invalidate the will. It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it would be impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse. In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law. The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 618 of the Code of Civil procedure, as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 618, as amended, that “No will * * * shall be valid * * * unless * * *.” It is further provided in the same section that “The attestation 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.” Codal section 634 provides that “The will shall be disallowed in either of the following cases: 1. If not executed and attested as in this Act provided.” The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed. We adopt and reaffirm the decision in the case of Saño vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. It may not be said here that our ruling is predicated on technicality or injustice. The will in question was formulated in a medley of three languages, Visayan, English, and Spanish. Suspicious circumstances surrounded the making of the will by the bedridden old man, who is alleged to have signed it. However, no express pronouncements on the two important questions relating to the language of the will and the testamentary capacity of the deceased are required. The order appealed from will be reversed, and the document Exhibit A disallowed as a will, without special pronouncement as to costs in either instance. So ordered. Avanceña, C. J., Johnson, Street, Ostrand, and Villa-Real, JJ., concur.