Cabang - v - Delfinado

G.R. No. L-8954, March 21, 1916 (DOROTEA CABANG, petitioner-appellees, vs. MARTIN DELFINADO, respondent-appellant. TRENT, J.)

Facts:

1.       The Court of First Instance of the Province of Pangasinan, probated a document purporting to be the last will and testament of the deceased Celestino Delfinado.

2.       Martin Delfinado filed an opposition to the allowance of the will, alleging that the will was not signed by the deceased, nor by any other person, in his presence and by his express direction, and that the attestation does not comply with law.

3.       After publication, the case was set for hearing on November 18, 1911.

4.        On the last named date the case proceeded to trial

Petitioner’s witnesses:	Opposition’s witness:
a.       the widow Dorotea Cabang, b.       Antonio Flor Mata, and c.        Paciano Romero, the latter being one of the subscribing witnesses.	a.       Martin Delfinado

5.       Petitioner presented a motion asking that the case be reopened for the purpose of receiving the testimony of the other two subscribing witnesses.  The petitioner filed another motion, setting forth that due publication for the legalization of the will had not been made.

6.       As a result of this last motion, the court, by an order directed a republication, setting the date for the hearing on the 7th of January, 1913, and the judgment appealed from was entered on the 25th of that month.

7.       The record fails to show a single act on the part of anyone which took place on the date of the last hearing. The decision of the court is based exclusively upon the testimony taken on the 18th of November, 1911.

8.        The petitioner’s two other subscribing witnesses were not presented.

Issue: Whether or not the court erred in admitting the will to probate without having two of the subscribing witnesses called, although they were living within the jurisdiction of the court, or for not requiring any showing why they were not produced. Held: Yes.

Ruling: (Full text contains history and foreign jurisprudence regarding examination of a will’s validity)

-          Our code provides that non-contested will may be admitted to probate upon the testimony of one of the subscribing witnesses, but is silent as to the manner in which they shall be proved when contested.

*The court here tries to decipher the intention of the Philippine Legislature in enacting the provisions of Act No. 190 by comparing it to the Vermont Statutes*

-          The ancient common law rule concerning the proof of instruments having attesting witnesses was that the instrument must be proved by those witnesses. [all the subscribing witnesses unless exempted: dead, beyond the jurisdiction of the court or insane. (Wigmore on Evidence)]

-          Later common law courts changed the rule so that one attesting witness was sufficient to prove the proper execution of the instrument.

-          One of the purpose why attesting witnesses must be called to prove a will for probate is that the party opposing the claim of proper execution of the will has a right to the benefit of cross-examining the attesting witnesses as to fraud, duress, or other matters of defense.The law places these witnesses "around the testator to ascertain and judge of his capacity" for the purpose of preventing frauds.

o    Here the attesting clause was omitted and the testator signed by mark.

o    The petitioner produced only one of the attesting witnesses.

-          Had there not been a contest, the presentation of one subscribing witness would have probably been sufficient under 631.

631: If no person appears to contest the allowance of a will at the times appointed, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only.

-          While there is no testimony in the record to the effect that the testator could neither read nor write, there is conclusive evidence that he could sign his name. They all agreed he signed Exhibit 1. This shows that he could write, at least his name, in a plain, clear manner, indicating a fairly good knowledge of writing.

-          Had the proponent shown that the other two subscribing witnesses were not within the jurisdiction of the court and could not, therefore, be called, the due execution of the will would still be very doubtful.

-          Believing that the intention of the Legislature that the subscribing witnesses must be called or good and sufficient reason shown why they could not be had, and being supported by the authorities above cited and quoted, Court concludes that the proponent did not comply with the provisions of the law in the presentation of her case.

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