[ G. R. No. 35586. October 31, 1932 ] 57 Phil. 437
[ G. R. No. 35586. October 31, 1932 ]
ESTATE OF THE DECEASED CARIDAD ALCANTARA DE GOROSTIZA. CONSORCIA DICHOSO DE TICSON, PETITIONER AND APPELLANT, VS. MARINO DE GOROSTIZA, OPPOSITOR AND APPELLEE. D E C I S I O N
MALCOLM, J.:
The will of the deceased Caridad Alcantara de Gorostiza was denied probate in the trial court, for the reason that the attestation clause failed to state that the testatrix signed every page of the will as required by section 618, as amended, of the Code of Civil Procedure. The attestation clause in question reads:
“We, the undersigned attesting witnesses, whose residences are stated opposite our respective names, do hereby certify that the testatrix, whose name is signed hereinabove, has publish unto us the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same in our presence, and in witness whereof we have each signed the same and each page thereof in the presence of said testatrix and in the presence of each other.” The single question is, if the attestation clause above quoted is fatally defective and so annuls the will, or if the said attestation clause conforms to the law and so permits the court to respect the wishes of the deceased and to sustain the will.
The theses of the appellant and the appellee are as far apart as the poles. Appellant says that when the attestation clause mentions “the testatrix, whose name is signed hereinabove”, the word “hereinabove” should be taken as not only referring to the signature at the end of the will but to the signatures on the margin of its two pages, and that when later the attestation clause mentions “the foregoing will consisting of two pages as her Last Will and Testament, and has signed the same”, the word “same” refers to the two pages of the will and not to the will itself. Appellee on the other hand maintains that in the attestation clause, all that has been said about the testatrix, “whose name is signed hereinabove” is that “she has signed the same (will) in our (witnesses) presence”, and that the attestation clause does not set forth that the testatrix has signed every page of the will in the presence of the attesting witnesses.
Placing the attestation clause under the judicial microscope, we observe, after analytical study, that it shows compliance with statutory provisions. We must reject as untenable the interpretation of the appellant relative to the word “hereinabove”, for this simply has reference to the signature of the testatrix at the end of the will. We must reject also as untenable the interpretation of the appellant that the word “same” refers back to “pages” and not to “will”, for such an interpretation would be inconsistent with the language used further on in the attestation clause where mention is made of the signing by the witnesses of “the same and each page thereof”, meaning the will and each page thereof. We are, however, clear that when the attestation clause states that the testatrix “has publish unto us the foregoing will consisting of Wo pages as her Last Will and Testament, and has signed the same”, the word “same” signifies the foregoing will consisting of two pages, which necessarily implies the signature by the testatrix of the will and every page thereof. In our judgment, an interpretation sustaining the validity of the attestation clause is neither forced nor illogical.
Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute 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.
There is another aspect to the case. Evidence of course may not be admitted to supply omissions in an attestation clause. The attestation clause must show on its face a compliance with the law. But this does not preclude an examination of the will, and here the will itself shows that the testatrix and the witnesses signed on the left-hand margin of the two pages; that the testatrix signed at the end of the will, and that the witnesses signed at the end of the attestation clause. The attestation clause is a part of the instrument which so closely, if not literally, adheres to the law of wills.
It has been observed during our deliberations that a decision upholding the will before us would run counter to a uniform line of authorities to the contrary. That is hardly an exact statement. The truth is that there have been noticeable in the Philippines two divergent tendencies in the law of wills-the one being planted on strict construction and the other on liberal construction. A late example of the former views may be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150), sanctioning a literal enforcement of the law. The basic case in the other direction, predicated on reason, is Abangan vs. Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later decisions.
The attestation clause here is an exact transcription of the form found in former Justice Fisher’s New Encyclopedia of Philippine Legal Forms, third edition, page 495, except that, by typographical error, the word “published” has been written “publish”. So it would be a safe assumption that there are other wills in this jurisdiction having similar attestation clauses. A decision against the will in this case might accordingly have far-reaching and disastrous results.
Legalistic formalities should not be permitted to obscure the use of good sound common sense in the consideration of wills and to frustrate the wishes of deceased persons solemnly expressed in testaments, regarding the execution of which there is not even a hint of bad faith or fraud. We find the attestation clause legally sufficient, and order that the will of the deceased Caridad Alcantara de Gorostiza be admitted to probate.
Judgment reversed, the costs of both instances to be paid by the appellee.
Villamor, Abad Santos, Hull, and Imperial, JJ., concur.
OSTRAND, J.: I reserve my vote.
BUTTE, J., concurs in the result.