6168 OFFICIAL GAZETTE Vor,. 46, No. l21

be sentenced in every case to sttpport the offspring of theoffended party, if there be any; but rvith regard to theincrease of the inclemnity asked for, lve find no cause foraltering the decision on that point, because we believe thatthe case invoked by the Solicitor General is not in pointwith the case at bar, for that case refers to a multiple rapecommitted by four persons against a single offended party,while in the present case there is only one offender.

Wherefore, upon modification of the decision appealedfrom, the accused is hereby sentenced to undergo an inde-terminate penalty of from eight (8) years and one (1) dayof. prisi,6n maAor to fourteen (14) years, eight (8) months

and ( 1) day of reclusitjn temporal, rvith the accessorypenalties prescribed by larv, to indemnify the offended partyin the sum of P500, rvithout. subsidiary imprisonment incase of insolvency, to support the offspring of said offendedparty, if there be any as a result of the offense, and to paythe costs.

Torces, Pres. J., and Fel;ir,,I., concttr.Judgntent modifi.ed.

lNo. 2300-R. January 19, 19491In the matter of the testate estate of the deceased Filo-

mena Bermoy; EnaonoNCIANA P. on Vntoso, petitionerand appellant, ?/s. Josn V. PuzoN rt {L., oppositorsand appellees.

'Wrr,r,; PnoeA,rB; Norv-CoupLIANcE v/ITE Fonlmr, Ruqursrrns Axxur,sV/rr,l; CasE AT Ban.-The attestation ciause in thc instantcase has dailed, to rnentirrn that the will to which it was at-tached or an,v page thereof had been signed by the testatrix,or that s

DtrcnMnun, 1950 OFFICIAL GAZtrTTE 6169

No. 16 of the court of F irst Instance of Leyte, in which hehimself was appointed special administyator on 1\{arch30, 19.16.

On November 23, 1945, Emerenciana de Veloso, anotherheir of the deceased Filomena Bermoy, filed an applicationfor the probate of her so-called last lvill and testament,rvhich rvas Special Proceeclings No. 48 of the same court.opposit ion was f i led to said appl icat ion by Jose Puzon,'Maximina Puzon, Lourdes Pttzon, Primopusa Valenzona,Iluminado Valenzona, Caricio Valenzona, Sofronia Valen-zona, alleged to be ldbitimate heirs of the deceased. Atthe tr ial of said trvo'cases, the part ies entered into thefoliorving agreement of facts:

1. That Filomena Bermoy had alu'ays been residing inbarrio Caridad, municipality of Baybay, Leyte, and wasthe larvful wiclorv of Benito Valenzona, who dGrd on No-vemebr 11. 1914 and that Fi lomena Bermoy died on June28, 1943 in said barr io;

2. That the couple had three children named Maura Va-lenzona u'ho diccl in 1905, Desiderio \ /alenzona l 'ho cl ied onNo','ember, 1916 and Lcopolda Yalenzona;

3. That l{aura Valenzona left three children namedJose Puzon, Clisteta and Isabelo Puzon, tli is last one havir:gdied in '1941, and left five natural children, all rninors,namely: Maximo, Remedios, Amada, Bonifacia and Lour-des, al l surnamed Puzon;

4. That f)esiderio Valenzona left six legitimate children,to lvit: Prirnopusa i Clotilde, rrhi, died cn Ivtay 6, 1945:I luminaclo; Caricio; Eufrcnia and Abedesa, al l of legal age.Clotilde Valenzona left threc legitimate children, all minors,named Cecilia cic Leorr; Maria Della de Leon and Eufroniodc Leon ;

5. That Leopolcla Va.lenzona was first married to LinoPefialoza by g hom slie had five child:en named: CrispilaPefialoza de l\Iiraflor, P:octtlo Pefi.aloza, I\{aria Pefialozade Vicencic.,, Lou:des Pefi,aloza de Bibas and EmerencianaPeiialoza de Veloso; and

6 That Leopolda Valenzona contracted a second mar-riage rvith one Peciro de Veyra, but they had no issue.

Both SpoulSS wel.e tahen by the gucrr il la forces inOctober, 1943 and \\'ere seen rro more.

The so-called last rr,-il l and testament of Filomeria Ber'-floy, marhed Exhibit B, in rvhich she lvilled ail her cstateexclusively in favor of her daughtel Lgqpolda \talenzona,u'ritten in the Visayan dialect and c'om;tcsec'l t,f three pagesis dated Septenber 2, 1"942 and thumbmarked by her andsigned by the rvitnesses Roque Rom, Isaias Bartolini anrlCamilo Talam, u'hile the attestation clattse rt'as signed byCamilo Talam, Gregorio Delaganar and l\{ateo l\{' iri l lo.

hfateo l\[ui' i l lo, tire notary public x']ro prepared t]re so-caiied last u'il l and testament and srgned the sanle as a

6170 OFFICIAL GAZETTE Vol. 46, No. lz

witness, as rvell as Isaias Bprtolini, another instrumentalwitness, testified that the {humbmarks appearing on themargines of the first trvo pages and at the foot oi the willwere affixed by the testatrix Filomena Bermoy inside herroom and then brought out by pedro de veyra who causedthem and others to sign the same as ryitnesses to the effectthat said document lvas the lag,t. wiil and testament ofFilomena Bermoy, rvhen in fac{none of said witnesses sawthe testatrix affix her thumbmark to said last lvill andtestament. Isaias, however, added that he signed as wit-ness to a document which pedro de veyra showed him,purporting to be his appointment as a

DrcnlrsBn, 1950 OFFICIAL GAZETTE 617tIn view of the foregoing, the lower court concruded:

"En conelusi6n, er Juzgado es de opini6n que no expresandose enel testamento propio ni en ra cr6usura i. Jt*ti*amiento que rostestigos han firmado el testamento en presencia de Ia testadora yen Ia de cada uno de eilos, er testamento no se ha otorgado de acuerdocon la ley; y su regalizaci6n debe ser denegada.

"Por las razones expuestas, el Juzgado deniega ra legarizaci6ndel testamento Exhfbito 8.,,The appellant assigns but one error, to wit:

' 'EI Juzgado Inferior err6 al denegar la legal izaci6n del testamentoExhfbit B, fundandose en que su cr5usura de atestiguamiento nocertifica que los.tes!]sos ro hayan firmado u., p""rurrcia de la testadoray de cada uno de el los. ' ,In discussing the above-quoted error the attorneys forthe appellant raise trvo questions, to wit:

"1' El criterio hoy predominante en la Corte Suprema es absolu_tamente leberal en cuarto a ra legar izaei6i -Ju-turtur,entos.

"2. Hay disposiciones de las regras de ros tr ibunares (Rures ofcourts) que aparentenrente pelmiten p.rebas-arl 'nde a f in de suprirlas deficiencias cie una cl6usula de atesiieu"lirrto. ,,The attestation clause in que,ltion reacis:

"'we, the uncersigned, rvitnesses to this last rr'l and testanrentof Firo'ena Bermoy certify that tire above mentioned is the lastwiii and testament of Firomena Bermoy *rri.r, she pubrishe.l andmade known rn said testament, ancr that- we, it",e wit.russes will signour names hereuncer in order to attest to truth that this testamentconsist two pages, and on tLe third page i, "r"

attesti"tion as wit_nesses- and we also sipSed our names o' au tbe left margins of ilristestament' this 2nd da]' of septe-rrlher, rg4r, at ba*io caridad,municipality of Baybay, pr.ovince of Lcyte, philippines.,,It is contenr^led by the appellan t, that the criter.ion ob- ,taining in several decisions of the supreme court is ab_sclutelv liberal r,viflr respect to the admission of wills toprobate, and to that effect cited severar crecisions of ourhoncrable Supreme Corrrt.section 618 ot cocre cf civil procedure, as far as it isrelevanr, to the question at issue, reads:

'(* * * The attestation shal state the rrurnber of sheets orpaqes nsed, .pon .vhich the win is vrritt:n, uJ'tn" fact that thetestator signed ilie will and e-.'erj.- page thereof, or caused someother person to w'te his narne, ti"a9i rri, ""p""* oirecti,n, in tirepresence of three lvit'esses, and the latter wit'eJed and signed thewill and all pages thereof in the presence of the testator and of eacho t h g r . r r v r v r r e ' E i

From the above_quoted provisiorr, it may be gatheredthat the attestat ion crause shouta siate,-- i t) the n^b", /of sheets or pages of u'hich the wiil consisis ; (z) the factthat the testator signecl ilre rviil una *..u oun. ilrereof,or caused some oilrer per.son to rvrite his narne under hisexprcssed directio'; (.3) that the signing of the rvill oneach and every page thereof by the I.stu-to* or by sorne-

i ;J

6172 OFFICIAL GAZETTtr Vol. 46, No. 72

bocly else under his expressed direction should be made inthe presence of three rvitnesses; (4) that the three rvit-nesses signed the lvill and all the pages thereof in thepresence of the testator and of each other. The attesta-tion clause of the will, Exhibit B, above-quoted, certifies( 1) that the preceding document is the last rvill and tes-tament of Filomena Bermoy published and made knowntherein i Q) that the witnesses did sign their names there-under in order to attest to the truth that said testamentconsists of two pages; (3) that on the third page thereofappears their attestation as lvitnesses, to rvhich they affixedor signed their names and on all of the left margins ofthe testament on the Znd day of September, 7941, at barriocariclad, municipality of Baybay, Province of Leyte, Phil-ippines.

Said attestation clause has failed to mention that thetestatrix signed the rvill and each and every one of thepages thereof, or that she had caused her name to besigned by one of the witnesses and affixed her thumbmarkthereto irr the presence of each ancl every one of the lv!t-nesses rvho signecl the attestation clause. It has also failedto mention that the rvitnesses signed said rvill antl all of thepages jn thc presence of the testatrix and of each and ever;'one of them.

A close stucry of the cases decided by otlr honorableSupreme Court on the question at issue shorvs that if theattestation clause of a rvill fails to shorv that the will wassigned by the testator on each and every page thereof, inthe presence of the instrumental rvitnesses' and that thelatfer in turn signed the sanre on each and everl' page inthe presence of ihe testator anC each and ever]' onc oftirrrr, the will has ah'rays been considered r.ull and void.

It is truc, hotvever, that in some insbances, the failttreto mention that each and every one of the pages of the willhad been signe,.l in the presence of the witnesses, providedthe same shorvs that the rvill rvas signed by the testatorin the presence of the tvitnesses, and that the fact thatall the pages thereof has been signed hy the testator cnd

''

said rvitnesse.s, may- bq ;-l1own b-y an inspection Of the. Wfl]itsclf, has not been considered"-a-mater:ial de-fect, althoughsuc"[- doctr:inei"has been reversed. in later decisions.

In effect, in the case of Uy Cq-gUe,.-1ls., N-a-va! lL: Sioca,43 Phil., 405, tfue attestation clause contested teaT asftr l lo 'vs:

,,.We, fhe undersigned witnesses of this rrill, statg that it has beenshorvn to us by the restatrix as her last will and testament' And asshe cannot sign her name, she asked thac Mr. Filomeno Piczon signher name in the presence of each of us, and each of us, the rvit-nesses, also signed in the presence of the testatrix"'

Said attestation clattse was considered defective for itsfailure to state the number of pages contained' in the rvill -'anci that the rvitnesses signed in the presence of each other'

: ;,;a'' '

:?!3

' .L:. i.-

DECpMBpR, l gbO OFFICIAL GAZETTE 6173lilql,

The will was, therefore, considerecl nuil and void and lvasnot admitted to probate.

In the case of Saflo as. euintana, 4g phi l . , 506, thefollorving doctrine was laid dorvn ;"An attestation crause which does not recite that the witnessessigned the wilr and each and every page thereof on the reft marginin the presence of the testator is defect-ive, and such a defect annulsthe wil l ." (Syl labus)In the case of Gumban as. Gorecho,

.b0 phil., 80, theattestation clause quoted in the dissenting opinion of

'Jus-tice Romualdez read as follows:

,_

"1-- * * That the testator Eustaquio Hagoriles signed said wiuln our presence and that we signed the said will in thu pr"r"rrce orthe testator and in the presence of each and everyone of us; saidrvill consists of ten used pages, incruding this last page.,,

The supreme court in denying the probate of the rvilland reversing the crecision appeared from laid clo,,vn thefol l lv ing doctr ine:

"An attestation crause which does not recite trrat the wirnessessrgned the wiil and each and every page thcreof on the reft rnarginin the prsr.ce of the testar,or i" deflctivu, urro- such a defect annursthe w^l l . ' ,

In the ease of euinto -'us. I{orata, E4 phil., 4g7, theattestation clause read as follcws:

"Nosotros los "1r.e firmanros ar finar de este testarnento, FlorencinoJoya, Aguedo so:'iano y Teodoro Breza damos fe, de haber visto opresenciado et acto de f irnar en esta escr' i tura o testarnerto cle losesposos Gregorio puebro y carmen euinto; ro firmaron elros ennuestra rresencia, y qre no:otros rcs iesf igos, ro 5r-amos ;; ;".-sencie do cada unc de nosotros, hoy b du ,,o,oiu*bre de rgz0. Estetcstamento est6 cornpuesto de tres fojas ftiles;,,

the cour.t said:"As wili be noted, the attestation clause contravenes the express: 'eeuirements of section 6's of Aet lrro. rg0, u.-;-ended r_ry Act No.2645, in two ways: First, it fairs to state tt uu uu.r, and every pageof tl':e rvill rvas signed by the testators and the witnesses; a'rr,seeond, it fails to state that the

-witnesses *ign.a each and everypage of thc will in the presence oi the testaior:q,,and in vielv thcreof, affi'rred the decision appeared r,rom

. disallowing the will.contrary, holever, tc the doctrine Iaid doryn in theabove-quoted decisions in the case of Na;,ye ?r,s. Mojal andAguilar, 4T Phil., rsz, in whicir the attesiation crause ,.ui

-

as fol lows:"signed and decrared by the testator Don Antonio Mojar to behis last rvi l l and testament in the presence of cach of us, and at thei'e{uest of said testator Don Antonio l\Ioial, *u-.igred this will inthe presence of each other and of the tesiattr.

- '

"PEDRo C.rno"SILvEBIo Monco"ZotLo Mesrwes,'

6174 OF'FICIAL GAZtrTTE Vor,. 46, No. lz

The Supreme Court said:"with regard to the rast defect pointerl out, namery, that thetestator does not appear to have sig'ed on ail the sheets of the wiilin the presence of the three witnesses, ancl the ratter to have attestedand signed on all the sheets in the presence or ile testator and ofeach other, it must be noted that in the attestation clause aboves:t out it is said that the testator signed the will ,in the presence ofeach of the witnesses' and the latter signed ,in ilrc presence of eachother and of the testqtor.' so that, as to whether ilre testator andthe attesting witnesses saw each,other sign the wiil, .u.h a require-

3en-t was clearlv l"g sufficienily complied with. what is not statedin this clause is whether the tesiator and the witnesses signecr all thesheets of the will."The act of the testator ard the witnesses seeing reciprocal ly thesigning oi the will is one which cannot be proven by the mere exhibi-t ion of the wil l unless i t is stated in the'document. And this factis expressly stated in the attestation clausc now before us. But thefact of the testator and the rvitne.rur r.uri"e' . t"".0 ai l the sheets

:f_i*:tilT:I^b-" li:l" b{,thu ,nu,," ;;;"tt"";^;; il ;:#;l;::,1?"9:,1 i::',1*:y u,,ythi.,g about ;hi;; ;J;f ;;:,";:1;:;;n,:t" i: l.:,^^'.n:,^i":t-1-"1 :u':, the.dange" "l ;;;; i;-;htr";;;;;;;which is what the law tries to avoid, cloes not exist.

andthe

tonor

"The order appealed frorn is affir.med with the costs against theappellant. So ordered. ' ,This was the most liberal construction given by our highestTribunal to the provisions of article 61g, qf Act 1g0-, re-garding the failure of the atrestation crause to mention thefact that the testator and bhe *,itnesses signed each andevery page of the wili by conside:ing

.c2i;1 omission insig_nificant and not affecfing the valicity of the .vill, alth'ughin subsequent oecisions herei:rabou. *.ntioned, the sup-'eme court re,zersed itself atc reestabrished the rormerdoctrine that stich omission was material, ancl as such \yas -a sufficient ground on r.vhich the nullity of the will couldbe predicated.

The attestation clause in the instant case has faile.I tomention that fhe rvill to which it was attachecl or pny our.thereof had heen signed by the testatrix, or ilrat ,o*uioJyelse, under h:r expressed request, signed Lt' name, andthat she affixed thei'eto her' thrrmhmark in the presenceof eaeh and every one of the r-,,itnesses. It has also failedto mention that the rvitnesses sig/red said rvill a'd everyo'e of the pages of r,vhich it consists in the pres.rr.. oieach other end of the testatrix. The omission of thesetwo essential facts to the vatiaity of the rvill renclersthe same null and void. The doctrine laic dor,vn in thecase of Nayve as. Mojal and Ag,rilar, suprr, is notapplicable in the instant case, because the omission withwhich we are concerlled consisis not oniy in the failure tostate the faci that the testatrix signed each and every oneof the pages of r,vhich the lvill .orrsirt., but also in the fact

-

"Therefol 'e, as in the instant case t l ie fact that i .he testatorthe witnesses signed each and every page of the ',vi, is proven bymcre examination of the signatures in the wil l , the omissionexpressly state such evident fact docs nob invaliaut" the willpreven+ its probate.

DncpMsnn, 1950 OF'FICIAL GAZETTE 6175

that she signed said rvill in the presence of the witnesses.Moreover, said attestation clanse failed likervise to men-tion the fact that the witnesses signed the will in thepresence of each other and of the testatrix, which is ano-ther substantial omission to invaliclate the rvill.

The proponent of the r'i l l tried to estabrish throughthe witnesses Roque Rom, Gregorio Delaganar and camiloTalam that the testatrix signed each and every one of the

t pages of the u'il l in their presence by causing Roque Romto sign for her and that she affixed her thumbmark withthe assistance of Mateo Murillo to each ancl every page ofsaid will ir' the presence of each and every one of thewitnesses who in turn signed each ancl every page of thervill in her presence and in the presence of each other,over and above the objection of the attorneys for theoppositors. Said evidence cannot be tal