GUMBAN, 

Petitioner-Appellee, v. INOCENCIA GORECHO ET AL., opponents-appellants.

Powell & Hill for Appellants.

Padilla, Treñas & Magalona and Francisco, Lualhati & Lopez for Appellee.

SYLLABUS

Topic/Doctrine: Forms of Will- Under the rule of strict interpretation, the contents of
the attestation

clause were mandatory, and noncompliance therewith invalidated the will.

1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE OF CIVIL.
PROCEDURE CONSTRUED. — 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. 2646, 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.

3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil Procedure, as amended,
which provides 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
same 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" applied and enforced.

4. ID.; ID.; ID.; ID. — 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 is
defective, and such a defect annuls the will. (Saño v. Quintana, supra.)

RE: appeal by the widow, Inocencia Gorecho, and eighteen other opponents, from an order of the
Court of First Instance of Iloilo 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.

In support of their argument on the assignment of error above mentioned, appellants rely on a
series of cases of this court beginning with in the Matter of the Estate of Saguinsin.

In the case of Saño v. Quintana, supra, 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 is defective, and such a defect annuls the
will. The case of Uy Coque v. Sioca, supra, was cited, but the case of Nayve v. Mojal and Aguilar,
supra, was not mentioned. In contrast, is the decision in Nayve v. Mojal and Aguilar, supra,
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

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.

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.

ISSUE:

Whether or not the failure to contain an attestation clause stating that the testator and the witnesses signed all the
pages of the will invalidate the will

HELD:

Yes. 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 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 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 vs. Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.