Republic of the Philippines examination of the American and English authorities that when a contest is instituted,

SUPREME COURT all of the attesting witnesses must be examined, if alive and within reach of the
Manila EN BANC process of the court.

G.R. No. 15566           September 14, 1921 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
EUTIQUIA AVERA, petitioner-appellee,  that, although the petition for the probate of this will had been pending from
vs. December 21, 1917, until the date set for the hearing, which was April 5, 1919, no
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar formal contest was entered until the very day set for the hearing; and it is probable
Garcia and Jose Garcia,objectors-appellants. 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
STREET, J.: proof without asking for a postponement of the trial in order that he might produce all
the attesting witnesses.
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will
of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the Although this circumstance may explain why the three witnesses were not produced,
latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon it does not in itself supply any basis for changing the rule expounded in the case
the date appointed for the hearing, the proponent of the will introduced one of the above referred to; and were it not for a fact now to be mentioned, this court would
three attesting witnesses who testified — with details not necessary to be here probably be compelled to reverse this case on the ground that the execution of the
specified — that the will was executed with all necessary external formalities, and that will had not been proved by a sufficient number of attesting witnesses.
the testator was at the time in full possession of disposing faculties. Upon the latter
point the witness was corroborated by the person who wrote the will at the request of
the testator. Two of the attesting witnesses were not introduced, nor was their It appears, however, that this point was not raised by the appellant in the lower court
absence accounted for by the proponent of the will. 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
When the proponent rested the attorney for the opposition introduced a single witness believe this point is well taken, and the first assignment of error must be declared not
whose testimony tended to show in a vague and indecisive manner that at the time be well taken. This exact question has been decided by the Supreme Court of
the will was made the testator was so debilitated as to be unable to comprehend what California adversely to the contention of the appellant, and we see no reason why the
he was about. same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335,
337.)
After the cause had been submitted for determination upon the proof thus presented,
the trial judge found that the testator at the time of the making of the will was of sound There are at least two reason why the appellate tribunals are disinclined to permit
mind and disposing memory and that the will had been properly executed. He certain questions to be raised for the first time in the second instance. In the first
accordingly admitted the will to probate. place it eliminates the judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court of first instance with
From this judgment an appeal was taken in behalf of the persons contesting the will, reference to that point, unless the case is remanded for a new trial. In the second
and the only errors here assigned have reference to the two following points, namely, place, it permits, if it does not encourage, attorneys to trifle with the administration of
first, whether a will can be admitted to probate, where opposition is made, upon the justice by concealing from the trial court and from their opponent the actual point
proof of a single attesting witness, without producing or accounting for the absence of upon which reliance is placed, while they are engaged in other discussions more
the other two; and, secondly, whether the will in question is rendered invalid by simulated than real. These considerations are, we think, decisive.
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 In ruling upon the point above presented we do not wish to be understood as laying
margin. down any hard and fast rule that would prove an embarrassment to this court in the
administration of justice in the future. In one way or another we are constantly here
Upon the first point, while it is undoubtedly true that an uncontested will bay be considering aspects of cases and applying doctrines which have escaped the
proved by the testimony of only one of the three attesting witnesses, nevertheless in attention of all persons concerned in the litigation below; and this is necessary if this
Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate court is to contribute the part due from it in the correct decision of the cases brought

1
before it. What we mean to declare is that when we believe that substantial justice The instrument now before us contains the necessary signatures on every page, and
has been done in the Court of First Instance, and the point relied on for reversal in the only point of deviation from the requirement of the statute is that these signatures
this court appears to be one which ought properly to have been presented in that appear in the right margin instead of the left. By the mode of signing adopted every
court, we will in the exercise of a sound discretion ignore such question relates a page and provision of the will is authenticated and guarded from possible alteration in
defect which might have been cured in the Court of First Instance if attention had exactly the same degree that it would have been protected by being signed in the left
been called to it there. In the present case, if the appellant had raised this question in margin; and the resources of casuistry could be exhausted without discovering the
the lower court, either at the hearing or upon a motion for a new trial, that court would slightest difference between the consequences of affixing the signatures in one
have had the power, and it would have been is duty, considering the tardy institution margin or the other.
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 The same could not be said of a case like that of Estate of Saguinsin, supra, where
court and his adversary, the point is first raised by the appellant in this court. We hold only the leaves, or alternate pages, were signed and not each written page; for as
that this is too late. 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
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing used, leaving blanks on the reverse sides, which conceivably might have been filled
inconsistent with the ruling we now make, for it appears from the opinion in that case in subsequently.
that the proponent of the will had obtained an order for a republication and new trial
for the avowed purpose of presenting the two additional attesting witnesses who had The controlling considerations on the point now before us were well stated In Re will
not been previously examined, but nevertheless subsequently failed without any of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice
apparent reason to take their testimony. Both parties in that case were therefore fully Avanceña, in a case where the signatures were placed at the bottom of the page and
apprised that the question of the number of witnesses necessary to prove the will was not in the margin, said:
in issue in the lower court.
The object of the solemnities surrounding the execution of wills is to close
The second point involved in this case is whether, under section 618 of the Code of the door against bad faith and fraud, to avoid substitution o will and
Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in testaments and to guarantee their truth and authenticity. Therefore the laws
this jurisdiction that the names of the testator and the instrumental witnesses should on this subject should be interpreted in such a way as to attain these
be written on the left margin of each page, as required in said Act, and not upon the primordial ends. But, on the other hand, also one must not lose sight of the
right margin, as in the will now before us; and upon this we are of the opinion that the fact that it is not the object of the law to restrain and curtail the exercise of
will in question is valid. It is true that the statute says that the testator and the the right to make a will. So when an interpretation already given assures
instrumental witnesses shall sign their names on the left margin of each and every such ends, any other interpretation whatsoever, that adds nothing but
page; and it is undeniable that the general doctrine is to the effect that all statutory demands more requisites entirely unnecessary, useless and frustrative of
requirements as to the execution of wills must be fully complied with. The same the testator's last will, must be disregarded.
doctrine is also deducible from cases heretofore decided by this court.
In the case before us, where ingenuity could not suggest any possible prejudice to
Still some details at times creep into legislative enactments which are so trivial it any person, as attendant upon the actual deviation from the letter of the law, such
would be absurd to suppose that the Legislature could have attached any decisive deviation must be considered too trivial to invalidate the instrument.
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 It results that the legal errors assigned are not sustainable, and
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.