Gumban vs. Gorecho, 50 Phil.

30 (1927)
Art. 809
In re will of Eustaquio Hagoriles. PETRONILO GUMBAN, petitioner and appellee, vs.
INOCENCIA GORECHO ET AL., opponents and appellants.
G.R. No. 26135 | March 3, 1927
MALCOLM, J.

Doctrine: The right to dispose of property by will is governed entirely by statute. The law 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. The law not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention.

Recit Ready Summary: Inocencia Gorecho opposes the CFI order probating the document presented by
Petronilo Gumban as the last will and testament of his husband 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. The issue at hand is whether is it the case of Saño v. Quintana
or the case of Nayve v. Mojal which is applicable in this case. The SC reaffirmed the decision in the case
of Saño v. Quintana, as it is believed to be 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.

Facts:
● This is an appeal by the widow, Inocencia Gorecho, and eighteen other opponents, from an order
of the CFI 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.

Issue: Whether is it the case of Saño v. Quintana or the case of Nayve v. Mojal which is applicable in this
case. - Saño v. Quintana is upheld.

Ruling: We adopt and reaffirm the decision in the case of Saño v. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve v. Mojal and Aguilar, supra.

In the case of Saño v. Quintana, 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
Gumban vs. Gorecho, 50 Phil. 30 (1927)
Art. 809
is defective, and such a defect annuls the will. In contrast, is the decision in Nayve v. Mojal and Aguilar,
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. 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 v. Quintana, supra, and, to the extent necessary,
modify the decision in the case of Nayve v. 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.

Fallo: 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.

Dissenting Opinion:

ROMUALDEZ, J., with whom concurs VILLAMOR, J., dissenting:

I understand there is no conflict between the decision in the case of Nayve v. Mojal and Aguilar and that
of Saño v. Quintana above cited. The point at issue in the first case (Nayve v. Mojal and Aguilar)
regarding which there is a difference of opinion, is the absence of the number of used sheets of pages of
the will in the attestation clause. In the case of Quintana it is not the absence of the number of sheets or
pages which is the question at issue, but the fact that the witnesses failed to sign each and every page of
the will on the left-hand margin in the presence of the testator.

The question before us is whether or not the fact that the testator and the witnesses had signed each and
every page of the will is sufficiently stated in the attestation clause. The pertinent part of said attestation
clause in dispute in the present case, reads as follows:

". . . That the testator Eustaquio Hagoriles signed said will in our presence and that we signed the said will
in the presence of the testator and in the presence of each and everyone of us; said will consists of ten
used pages, including this last page."

As may be seen the number of used sheets of the will appears in this clause. Therefore, the doctrine
enunciated in the case of Nayve v. Mojal and Aguilar is not strictly applicable to the case before us.

It also appears that the testator signed the will in the presence of the witnesses and the latter in the
presence of the former. Therefore, the case of Quintana above cited is not applicable herein.

The portion of the attestation clause above quoted which is in dispute, expressly states that the testator
and the witnesses signed the will, consisting of ten used pages, the former in the presence of the latter and
the latter in the presence of the former and in the presence of each and everyone of them.

It is true, strictly speaking, that in signing a will of ten pages it does not necessarily mean signing each
and everyone of said pages, although we may say, for example, "I have read this book of a hundred
pages," giving it to understand that we have read each and everyone of the hundred pages of the book. But
when, as in the instant case, it is a fact, and indisputable fact, that each and everyone of the ten pages of
this will was signed by the testator and the witnesses, the lack of clarity in the language of the attestation
clause, in my opinion, should not be a bar to the probation of the will.

This court has rightly held that:

"The solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and authenticity." (Abangan v.
Abangan, 40 Phil., 476.)

And from the fact stated in the attestation clause in question that the testator and the witnesses signed the
ten pages of the will, which fact appears in the will itself, as may be seen upon examination of the
instrument before us which was offered and admitted as evidence, it cannot be presumed to have been
made in bad faith, nor a fraud or forgery committed, nor is there even a possibility of any such
contingencies.

And where there is no such contingency and the required provisions of the law are substantially complied
with, the free expression of the will should necessarily be recognized and respected and in no way
restrained. Thus, this court, even in the cases in which the legal requirements have not been literally but
Gumban vs. Gorecho, 50 Phil. 30 (1927)
Art. 809
only substantially complied with, is very liberal when it clearly shows that there exists no possibility of
fraud, forgery or bad faith in the execution of the will.

To follow a criterion, unnecessarily strict, in the probation of a will even if the ends of justice are
completely satisfied and its precepts substantially obeyed, is contrary to the sound doctrine repeatedly laid
down by this court and expressed in the case of Abangan v. Abangan above-mentioned, in the following
manner:

"But, on the other hand, also one must not lose sight of the fact that 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," namely, to close the door against bad faith and fraud, to avoid substitution of wills, and testaments
and to guarantee their truth and authenticity, "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."

I am of the opinion that this criterion should be strictly followed in the present case and therefore the
probation of the will, the subject-matter of this action, should be affirmed.