Republic of the Philippines

SUPREME COURT
Manila
EN BANC
December 22, 1923
G.R. No. 21177
In re probate of the will of Josefa Dionisio. TEOFILA DIONISIO,
petitioner-appellee,
vs.
ANGELA DIONISIO, opponent-appellant.
J.E. Blanco, R. Nepomuceno and Ambrosio Santos for appellant.
Francisco and Lualhati for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Bulacan
admitting to probate a document alleged to be the last will and
testament of the deceased Josefa Dionisio.
The petition for the probate of the document was opposed by Angela
Dionisio, a niece of the deceased, on the grounds (1) that the
document has not been executed in the form required by law for a
valid will, (2) that at the time of its execution the deceased was
mentally incapacitated, and (3) that the alleged signatures of the
deceased to the document are forgeries.
(1) In connection with the first ground for the opposition, the appellant
maintains that the attestation clause of the alleged will is defective in
that it does not state the number of sheets or pages used in the
document, nor the fact that the testatrix signed every page thereof,
and that it, therefore, is invalid under section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The section, as amended,
reads as follows:
No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or affect the same, unless

it be written in the language or dialect known by the testator and

signed by him, or by the testator's name written by some other person
in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of each other. The testator or the person requested by him
to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left margin and
said pages shall be numbered correlatively in letters placed on the
upper part of each sheet. 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 witnesses and signed the
will and all pages thereof in the presence of the testator and each
other.
The document here in question is executed in the Tagalog language.
The attesting clause reads as follows:
Kaming nakalagda sa ibaba nito ay pinatototohanan namin na ang
testadora na si G. Josefa Dionisio ay nasa kaniyang mahusay na
kaisipan, at isinaysay na ang kasulatang nasa itaas nito ay siya niyang
huling kalooban at testamento at pumirma sa harap naming tatlo sa
ibaba ng kasulatan at sa mga guilid ng bawat dalawang pagina, at
lumagda naman kami sa ibaba nito at sa bawat guilid ng dalawang
pagina sa harap ng testadora, at bawat isa sa aming lahat.
This is thus translated into Spanish by one of the official interpreters of
the Court of First Instance of Manila:
Nosotros los abajo firmantes atestiguamos que la testadora, Josefa
Dionisio, este en su buen juicio y declaro que el documento arriba
escrito es su ultima disposicion y testamento y ella lo firmo en la
presencia de nosotros tres al pie del documento y en los margenes de
las dos paginas y tambien firmanos a continuacion y en los margenes

de las dos paginas en la presencia de la testadora y en la presencia de

cada uno y todos nosotros.
The appellant contends that this translation is incorrect and that it
should read:
Nosotros, los abajo firmados, certificamos que la testadora Josefa
Dionisio esta en su sano juicio y declaro que la escritura preinserta es
su ultima voluntad y testamento y afirmo en presencia de nosotros tres
al pie del mismo y en los margenes de cada dos paginas, y nosotros
tambien firmamos al pie de esta clausula y en cada margen de dos
paginas en presencia de la testadora y cada uno de todos nosotros.
As will be seen, if the translation made by the official interpreter is
correct, the attestation clause in the document does state the number
of pages used and also the fact that the testatrix signed all of the
pages. If, on the other hand, the version given by the appellant is
correct, the meaning would, at least, be obscure and the clause would
hardly meet the requirements of the law.
Several members of the court, who possess a knowledge of the
Tagalog language, have examined the two translations and are of the
opinion that the one made by the official translator is correct and in
conformity with the idiomatic usage of the Tagalog tongue; that anyone
familiar with the language, reading the Tagalog version of the clause in
question, would understand it in the sense given it by the official
translator; and that the literal translation furnished by the appellant,
while word for word correct, is not idiomatic. If this is true and as to
that we have no doubt the clause is sufficient in law.
(2) There is practically no evidence tending to show that Josefa Dionisio
was of unsound mind, at the time of the execution of the alleged will.
(3) The greater part of the evidence before us relates to the third
ground for the opposition; i.e., that the signatures of the deceased, as
appearing in the document, are forgeries, and eight of the nine
assignments of error presented by the appellant bear directly upon this

point. Without entering into an extended discussion of the evidence, it

is sufficient to say that, in our opinion, it amply supports the finding of
the court below that the signatures in question are genuine. We share
with the trial judge his distrust of the testimony of the "expert" Pedro
Serrano Laktaw, and we are also of the opinion that such minor
differences as there are between the disputed signatures and the
admitted signatures of the deceased are due to differences in her
physical condition. At the time the will was executed she was
extremely feeble and practically a paralytic, a fact which naturally
would affect the appearance of her handwriting. Neither do we find any
merit in the appellant's assignments of error Nos. 3,4,5,6,7, and 8.
The order appealed from is affirmed, with costs against the appellant.
So ordered.
Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
November 7, 1918
G.R. No. 14074
In the matter of the probation of the will of Jose Riosa.MARCELINO
CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in the Philippine
Islands the law existing on the date of the execution of a will, or the
law existing at the death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in the month of
January, 1908, in which he disposed of an estate valued at more than
P35,000. The will was duly executed in accordance with the law then

in force, namely, section 618 of the Code of Civil Procedure . The will
was not executed in accordance with Act No. 2645, amendatory of said
section 618, prescribing certain additional formalities for the signing
and attestation of wills, in force on and after July 1, 1916. In other
words, the will was in writing, signed by the testator, and attested and
subscribed by three credible witnesses in the presence of the testator
and of each other; but was not signed by the testator and the
witnesses on the left margin of each and every page, nor did the
attestation state these facts. The new law, therefore, went into effect
after the making of the will and before the death of the testator,
without the testator having left a will that conforms to the new
requirements.
Section 618 of the Code of Civil Procedure reads:
No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or affect the same, unless
it be in writing and signed by the testator, or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. The
attestation shall state the fact that the testator signed the will, or
caused it to be signed by some other person, at his express direction,
in the presence of three witnesses, and that they attested and
subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it
is proven that the will was in fact signed and attested as in this section
provided.
Act No. 2645 has amended section 618 of the Code of Civil Procedure
so as to make said section read as follows:
SEC. 618. Requisites of will. No will, except as provided in the
preceding section, shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be written in the language or

dialect known by the testator and signed by him, or by the testator's

name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. The
testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each,
and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each
sheet. 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.
This court has heretofore held in a decision handed down by the Chief
Justice, as to a will made after the date Act No. 2645 went into effect,
that it must comply with the provisions of this law. (Caraig vs
Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not published].)
The court has further held in a decision handed down by Justice Torres,
as to will executed by a testator whose death took place prior to the
operative date of Act No. 2645, that the amendatory act is
inapplicable. (Bona vs. Briones, [1918], 38 Phil., 276.) The instant
appeal presents an entirely different question. The will was executde
prior to the enactment of Act No. 2645 and the death occurred after
the enactment of this law.
There is a clear cleavage of authority among the cases and the textwriters, as to the effect of a change in the statutes prescribing the
formalities necessary to be observed in the execution of a will, when
such change is made intermediate to the execution of a will and the
death of a testator. (See generally 40 Cyc., 1076. and any textbook on
Wills, and Lane's Appeal from Probate [1889], 57 Conn., 182.) The rule

laid down by the courts in many jurisdictions is that the statutes in

force at the testator's death are controlling, and that a will not
executed in conformity with such statutes is invalid, although its
execution was sufficient at the time it was made. The reasons assigned
for applying the later statute are the following: "As until the death of
the testator the paper executed by him, expressing his wishes, is not a
will, but a mere inchoate act which may or may not be a will, the law in
force at the testator's death applies and controls the proof of the will."
(Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to accept the
foregoing proposition and the reasons assigned for it, it would logically
result that the will of Jose Riosa would have to be held invalid.
The rule prevailing in many other jurisdictions is that the validity of
the execution of a will must be tested by the statutes in force at the
time of its execution and that statutes subsequently enacted have no
retrospective effect. This doctrine is believed to be supported by the
weight of authority. It was the old English view; in Downs (or
Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported to
have said that "the general rule as to testaments is, that the time of
the testament, and not the testator's death, is regarded." It is also the
modern view, including among other decisions one of the Supreme
Court of Vermont from which State many of the sections of the Code if
Civil Procedure of the Philippine Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the opinion by the
learned Justice Sharswood (Taylor vs. Mitchell [1868], 57 Pa. St., 209) is
regarded to be the best considered. In this opinion is found the
following:
Retrospective laws generally if not universally work injustice, and
ought to be so construed only when the mandate of the legislature is
imperative. When a testator makes a will, formally executed according
to the requirements of the law existing at the time of its execution, it

would unjustly disappoint his lawful right of disposition to apply to it a

rule subsequently enacted, though before his death.
While it is true that every one is presumed to know the law, the maxim
in fact is inapplicable to such a case; for he would have an equal right
to presume that no new law would affect his past act, and rest satisfied
in security on that presumption. . . . It is true, that every will is
ambulatory until the death of the testator, and the disposition made by
it does not actually take effect until then. General words apply to the
property of which the testator dies possessed, and he retains the
power of revocation as long as he lives. The act of bequeathing or
devising, however, takes place when the will is executed, though to go
into effect at a future time.
A third view, somewhat larger in conception than the preceding one,
finding support in the States of Alabama and New York, is that statutes
relating to the execution of wills, when they increase the necessary
formalities, should be construed so as not to impair the validity of a will
already made and, when they lessen the formalities required, should
be construed so as to aid wills defectively executed according to the
law in force at the time of their making (Hoffman vs. Hoffman, [1855],
26 Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose between the three rules
above described. Our selection, under such circumstances, should
naturally depend more on reason than on technicality. Above all, we
cannot lose sight of the fact that the testator has provided in detail for
the disposition of his property and that his desires should be respected
by the courts. Justice is a powerful pleader for the second and
third rules on the subject.
The plausible reasoning of the authorities which back the first
proposition is, we think, fallacious. The act of bequeathing or devising
is something more than inchoate or ambulatory. In reality, it becomes a
completed act when the will is executed and attested according to

the law, although it does not take effect on the property until a future
time.
It is, of course, a general rule of statutory construction, as this court
has said, that "all statutes are to be construed as having only a
prospective operation unless the purpose and intention of the
Legislature to give them a retrospective effect is expressly declared or
is necessarily implied from the language used. In every case of doubt,
the doubt must be resolved against the retrospective effect."
(Montilla vs. Corporacion de PP. Agustinos [1913], 24 Phil., 220. See
also Chew Heong vs. U.S. [1884], 112 U.S., 536; U.S. vs American
Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the Civil
Code, is corroborative; article 3 thereof provides that "laws shall not
have a retroactive effect, unless therein otherwise prescribed." The
language of Act No. 2645 gives no indication of retrospective effect.
Such, likewise, has been the uniform tendency of the Supreme Court of
the

Philippine

Islands

on

cases

having

special

application

to

testamentary succession. (Abellovs. Kock de Monaterio [1904], 3 Phil.,

558; Timbol vs. Manalo [1906], 6 Phil., 254; Bona vs. Briones, supra; In
the Matter of the Probation of the Will of Bibiana Diquia [1918], R. G.
No. 13176,[[1]] concerning the language of the Will. See also section
617, Code of Civil Procedure .)
The strongest argument against our accepting the first two rules
comes out of section 634 of the Code of Civil Procedure which, in
negative terms, provides that a will shall be disallowed in either of
five cases, the first being "if not executed and attested as in this Act
provided." Act No. 2645 has, of course, become part and parcel of the
Code of Civil Procedure . The will in question is admittedly not executed
and attested as provided by the Code of Civil Procedure as amended.
Nevertheless, it is proper to observe that the general principle in the
law of wills inserts itself even within the provisions of said section 634.
Our statute announces a positive rule for the transference of property

which must be complied with as completed act at the time of the

execution, so far as the act of the testator is concerned, as to all
testaments made subsequent to the enactment of Act No. 2645, but is
not effective as to testaments made antecedent to that date.
To answer the question with which we began this decision, we
adopt as our own the second rule, particularly as established
by the Supreme Court of Pennsylvania. The will of Jose Riosa is
valid.
The order of the Court of First Instance for the Province of Albay of
December 29, 1917, disallowing the will of Jose Riosa, is reversed, and
the record shall be returned to the lower court with direction to admit
the said will to probate, without special findings as to costs. So
ordered.
Arellano, C.J., Torres, Johnson, Street, Avancea and Fisher, JJ., concur.
In re: Will and Testament of the deceased REVEREND SANCHO
ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., PetitionersAppellees, v. MIGUEL ABADIA, ET AL., Oppositors-Appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G.
Advincula, for Appellants.
C. de la Victoria, for Appellees.

SYLLABUS

1. WILLS; PROBATE OF WILL; VALIDITY OF WILLS AS TO FORM DEPENDS

UPON LAW IN FORCE AT TIME OF EXECUTION; TITLE OF EXECUTION.
The validity of a will as to form is to be judged not by the law in force

at the time of the testators death or at the time the supposed will is
presented in court for probate or when the petition is decided by the
court but at the time the instrument was executed. One reason in
support of the rule is that although the will operates upon and after the
death of testator, the wishes of the testator about the disposition of his
estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or
bequest then becomes a completed act.
2. ID.; EXECUTION OF WILLS; LAW SUBSEQUENTLY PASSED ADDING
NEW REQUIREMENTS AS TO EXECUTION OF WILLS; FAILURE TO
OBSERVE

FORMAL

REQUIREMENTS

AT

TIME

OF

EXECUTION

INVALIDATES WILLS; HEIRS INHERIT BY INTESTATE SUCCESSION;

LEGISLATURE CAN NOT VALIDATE VOID WILLS. From the day of the
death of the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under the due
process clause of the Constitution against a subsequent change in the
statute adding new legal requirements of execution of will, which
would invalidate such a will. By parity of reasoning, when one executes
a will which is invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his death he
should be regarded and declared as having died intestate, and his
heirs will then inherit by intestate succession, and no subsequent law
with

more

liberal

requirements

or

which

dispenses

with

such

requirements as to execution should be allowed to validate a defective

will and thereby divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature can not
validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

DECISION

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay,

Cebu, executed a document purporting to be his Last Will and
Testament now marked Exhibit "A." Resident of the City of Cebu, he
died on January 14, 1943, in the municipality of Aloguinsan, Cebu,
where he was an evacue. He left properties estimated at P8,000 in
value. On October 2, 1946, one Andres Enriquez, one of the legatees
in Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit the
estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being
dead, testified without contradiction that in his presence and in the
presence of his co-witnesses, Father Sancho wrote out in longhand
Exhibit "A" in Spanish which the testator spoke and understood; that
he (testator) signed on he left hand margin of the front page of each of
the three folios or sheets of which the document is composed, and
numbered the same with Arabic numerals, and finally signed his name
at the end of his writing at the last page, all this, in the presence of the
three attesting witnesses after telling that it was his last will and that
the said three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each other.
The oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a
holographic will; that it was in the handwriting of the testator and that
although at the time it was executed and at the time of the testators

death, holographic wills were not permitted by law still, because at the
time of the hearing and when the case was to be decided the new Civil
Code was already in force, which Code permitted the execution of
holographic wills, under a liberal view, and to carry out the intention of
the testator which according to the trial court is the controlling factor
and may override any defect in form, said trial court by order dated
January 24, 1952, admitted to probate Exhibit "A", as the Last Will and
Testament of Father Sancho Abadia. The oppositors are appealing from
that decision; and because only questions of law are involved in the
appeal, the case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof
provides that a person may execute a holographic will which must be
entirely written, dated and signed by the testator himself and need not
be witnessed. It is a fact, however, that at the time that Exhibit "A" was
executed in 1923 and at the time that Father Abadia died in 1943,
holographic wills were not permitted, and the law at the time imposed
certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the
left hand margin by the testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit "A" because the
back pages of the first two folios of the will were not signed by any
one, not even by the testator and were not numbered, and as to the
three front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In
re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the
testator and his witnesses to sign on the left hand margin of every
page, said:jgc:chanrobles.com.ph
". . . This defect is radical and totally vitiates the testament. It is not

enough that the signatures guaranteeing authenticity should appear

upon two folios or leaves; three pages having been written on, the
authenticity of all three of them should be guaranteed by the signature
of the alleged testatrix and her witnesses."cralaw virtua1aw library
And in the case of Aspe v. Prieto, 46 Phil., 700, referring to the same
requirement, this Court declared:jgc:chanrobles.com.ph
"From an examination of the document in question, it appears that the
left margins of the six pages of the document are signed only by
Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by
the attesting witnesses who omitted to sign with the testator at the left
margin of each of the five pages of the document alleged to be the will
of Ventura Prieto, is a fatal defect that constitutes an obstacle to its
probate."cralaw virtua1aw library
What is the law to apply to the probate of Exh. "A" ? May we apply the
provisions of the new Civil Code which now allows holographic wills,
like Exhibit "A" which provisions were invoked by the appelleepetitioner and applied by the lower court? But article 795 of this same
new Civil Code expressly provides: "The validity of a will as to its form
depends upon the observance of the law in force at the time it is
made." The above provision is but an expression or statement of the
weight of authority to the effect that the validity of a will is to be
judged not by the law inforce at the time of the testators death or at
the time the supposed will is presented in court for probate or when
the petition is decided by the court but at the time the instrument was
executed. One reason in support of the rule is that although the will
operates upon and after the death of the testator, the wishes of the
testator about the disposition of his estate among his heirs and among
the legatees is given solemn expression at the time the will is

executed, and in reality, the legacy or bequest then becomes a

completed act. This ruling has been laid down by this court in the case
of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should
be followed.
Of course, there is the view that the intention of the testator should be
the ruling and controlling factor and that all adequate remedies and
interpretations should be resorted to in order to carry out said
intention, and that when statutes passed after the execution of the will
and after the death of the testator lessen the formalities required by
law for the execution of wills, said subsequent statutes should be
applied so as to validate wills defectively executed according to the
law in force at the time of execution. However, we should not forget
that from the day of the death of the testator, if he leaves a will, the
title of the legatees and devisees under it becomes a vested right,
protected under the due process clause of the constitution against a
subsequent change in the statute adding new legal requirements of
execution of wills which would invalidate such a will. By parity of
reasoning, when one executes a will which is invalid for failure to
observe and follow the legal requirements at the time of its execution
then upon his death he should be regarded and declared as having
died intestate, and his heirs will then inherit by intestate succession,
and no subsequent law with more liberal requirements or which
dispenses with such requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of their vested
rights in the estate by intestate succession. The general rule is that the
Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp.
192-193).
In view of the foregoing, the order appealed from is reversed, and
Exhibit "A" is denied probate. With costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion and Reyes J.B.L., JJ., concur.