AVERA Vs Garcia

AVERA,
petitioner-appellee,vs.MARINO GARCIA, and JUAN RODRIGUEZ,
RE: Eutiquia Avera for probate of the will of one Esteban Garcia.
Opposition: made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors
Jose Garcia and Cesar Garcia.
Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses
who testified — with details not necessary to be here specified — that the will was executed with all
necessary external formalities, and that the testator was at the time in full possession of disposing
faculties.
When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended
to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to
be unable to comprehend what he was about.
Court found that the testator at the time of the making of the will was of sound mind and disposing
memory and that the will had been properly executed. He accordingly admitted the will to probate.
Hence the appeal.
Issue:
first, whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting
witness, without producing or accounting for the absence of the other two; and,
Secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator
and of the three attesting witnesses are written on the right margin of each page of the will instead of the left
margin.
Ruling:
Citing Cabang vs. Delfinado, this court declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and
within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal
contest was entered until the very day set for the hearing; and it is probable that the attorney for the
proponent, believing in good faith the probate would not be contested, repaired to the court with only
one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously
permitted the case to go to proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not in itself
supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to
be mentioned, this court would probably be compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon the
submission of the cause for determination in that court or upon the occasion of the filing of the motion
for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first time
in this court. We believe this point is well taken, and the first assignment of error must be declared not be
well taken.
In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a
motion for a new trial, that court would have had the power, and it would have been is duty, considering the tardy
institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought
into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first
raised by the appellant in this court. We hold that this is too late.
The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the
testator and the instrumental witnesses should be written on the left margin of each page, as required in
said Act, and not upon the right margin, as in the will now before us; and upon this we are of the opinion
that the will in question is valid.
It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from
cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be absurd to suppose
that the Legislature could have attached any decisive importance to them. The provision to the effect that the
signatures of the testator and witnesses shall be written on the left margin of each page — rather than on the
right margin — seems to be this character. So far as concerns the authentication of the will, and of every part
thereof, it can make no possible difference whether the names appear on the left or no the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking in the signatures required to be written on its several
pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which
contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each page
containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only point of
deviation from the requirement of the statute is that these signatures appear in the right margin instead
of the left. By the mode of signing adopted every page and provision of the will is authenticated and guarded
from possible alteration in exactly the same degree that it would have been protected by being signed in
the left margin; and the resources of casuistry could be exhausted without discovering the slightest
difference between the consequences of affixing the signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or
alternate pages, were signed and not each written page; for as observed in that case by our late
lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix
only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably
might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476,
479), where the court, speaking through Mr. Justice Avanceña, in a case where the signatures were placed at
the bottom of the page and not in the margin, said:
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution o will and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant
upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the
instrument.
Judgment appealed from will be affirmed.

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AVERA,

petitioner-appellee,vs.MARINO GARCIA, and JUAN RODRIGUEZ,

Hence the appeal.

Judgment appealed from will be affirmed.

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