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G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant,vs.RICARDO GUSTILO, ET AL., defendants-appellees

In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because thelower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the

witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, asrequired by the provisions of section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point, being a part of thetestimony of the said Isabeo Jena:

Q. 1641 Who first signed the will?

A. 1641 I signed it first, and afterwards Aniceto and the others.

Q. 1641 Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and atthe moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign(en actitud de firmar). I believe he signed, because he was at the table. . . .

Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will.

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the penin his hand, in position ready to sign. I believe he signed.

Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did notactually see him sign.

Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I wasleaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and whenI was near the door I happened to turn my face and I saw that he had his hand with the pen resting on thewill, moving it as if for the purpose of signing.

Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose ofsigning, or whether he was signing

A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of theparties to the proceedings, but the court, nevertheless, found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances thedocument in question, which has been presented for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document inquestion be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,executed the said document as his will. They were all together, and were in the room where Jabonetawas, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at hisrequest, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then signedas a witness in the presence of the testator, and in the presence of the other two persons who signed aswitnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As hewas leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the willas a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the

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room the said Julio Javellana signed as a witness in the presence of the testator and of the witnessAniceto Jalbuena.

We can not agree with so much of the above finding of facts as holds that the signature of Javellana was notsigned in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure.The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixinghis signature to the will, taken together with the testimony of the remaining witnesses which shows thatJavellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the

presence of Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of thename of the witness was being written, is of no importance. He, with the other witnesses and the testator, hadassembled for the purpose of executing the testament, and were together in the same room for that purpose, andat the moment when the witness Javellana signed the document he was actually and physically present and insuch position with relation to Javellana that he could see everything which took place by merely casting his eyesin the proper direction, and without any physical obstruction to prevent his doing so, therefore we are of opinionthat the document was in fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the testator is said to bethat the testator may have ocular evidence of the identity of the instrument subscribed by the witness andhimself, and the generally accepted tests of presence are vision and mental apprehension. (See Am. &

Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together forthe purpose of witnessing the execution of the will, and in a position to actually see the testator write, if theychoose to do so; and there are many cases which lay down the rule that the true test of vision is not whether thetestator actually saw the witness sign, but whether he might have seen him sign, considering his mental andphysical condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the witnesses areequally applicable in determining whether the witnesses signed the instrument in the presence of each other, asrequired by the statute, and applying them to the facts proven in these proceedings we are of opinion that the

statutory requisites as to the execution of the instrument were complied with, and that the lower court erred indenying probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these proceedings wassatisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should thereforebe admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days therecord will be returned to the court form whence it came, where the proper orders will be entered inconformance herewith. So ordered.

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BEATRIZ NERA, ET AL., plaintiffs-appellees,vs.NARCISA RIMANDO, defendant-appellant.

The only question raised by the evidence in this case as to the due execution of the instrument propounded as awill in the court below, is whether one of the subscribing witnesses was present in the small room where it wasexecuted at the time when the testator and the other subscribing witnesses attached their signatures; or whetherat that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a

doorway, across which was hung a curtain which made it impossible for one in the outside room to see thetestator and the other subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room withthe testator and the other subscribing witnesses at the time when they attached their signatures to the instrument,and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting thedocument to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importancein the determination of this case, as he was of opinion that under the doctrine laid down in the case ofJabonetavs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when

the testator and the other describing witnesses signed the instrument in the inner room, had it been proven,would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion thathad this subscribing witness been proven to have been in the outer room at the time when the testator and theother subscribing witnesses attached their signatures to the instrument in the inner room, it would have beeninvalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of thewitness in the outer room. This because the line of vision from this witness to the testator and the othersubscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outerone "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether theyactually saw each other sign, but whether they might have been seen each other sign, had they chosen todo so, considering their mental and physical condition and position with relation to each other at themoment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each otherat the moment of thesubscription of each signature, must be such that they may see each other sign if they choose to do so. This, ofcourse, does not mean that the testator and the subscribing witnesses may be held to have executed theinstrument in the presence of each other if it appears that they would not have been able to see each other sign atthat moment, without changing their relative positions or existing conditions. The evidence in the case reliedupon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was

actually and physically present and in such position with relation to Jaboneta that he could see everything thattook place by merely casting his eyes in the proper direction and without any physical obstruction to prevent hisdoing so." And the decision merely laid down the doctrine that the question whether the testator and thesubscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend uponproof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each ofthem, but that at that moment existing conditions and their position with relation to each other were such that bymerely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrinefurther would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeatthe purpose for which this particular condition is prescribed in the code as one of the requisites in the executionof a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last willand testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

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269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A.721;See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law inthis jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred toaforecited cases merely acted as instrumental, subscribing attesting witnesses, and notas acknowledgingwitnesses. He the notary public acted not only as attesting witness but also acknowledgingwitness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the

witnesses. The notary public shall not be required to retain a copy of the will or file another withthe office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would havethe effect of having only two attesting witnesses to the will which would be in contravention of the provisionsof Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires thatthe testator and the required number of witnesses must appear before the notary public to acknowledge the will.The result would be, as has been said, that only two witnesses appeared before the notary public for or thatpurpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will

and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

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G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,vs.EDWARD A. BELLIS, ET AL., heirs-appellees.

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Maniladated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein. Thefacts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, MaryE. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceasedhim in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy,who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; andfinally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes,obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in thefollowing order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his threeillegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) afterthe foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first andsecond wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G.Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. 1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will wasadmitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of$240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis,

Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of theirrespective legacies, or a total of P120,000.00, which it released from time to time according as the lower courtapproved and allowed the various motions or petitions filed by the latter three requesting partial advances on accountof their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's FinalAccount, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of thelegacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies ofAmos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total ofP120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Willand Testament divided the residuary estate into seven equal portions for the benefit of the testator's sevenlegitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the projectof partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore,compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by theregistry receipt submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964,issued an order overruling the oppositions and approving the executor's final account, report and administration andproject of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this

case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this CourtinAznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent isa national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was botha national of Texas and a domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict oflaw rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a

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reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflictsrule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties aresituated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however,of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3Appellants' position istherefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in theirarguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph ofArticle 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate ortestamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successionalrights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to theamount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated bythe national law of the person whose succession is under consideration, whatever may he the nature of theproperty and regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property, and those which have for their object publicorder, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated,or by determinations or conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,Congressdeletedthe phrase, "notwithstanding the provisions of this and the next preceding article" when theyincorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantialchange the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose

to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestatesuccession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, whichdecrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes,Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen toleave, inter alia, the amountof successional rights, to the decedent's national law. Specific provisions must prevailover general ones.

Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the otherhis Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming

that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as thisCourt ruled inMiciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his propertiesshall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for hisnational law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Codestates said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under thelaws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of thewill and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimescannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.