Unson v. Abella

PHILIPPINE REPORTS ANNOTATED VOLUME 043 9/15/20, 5:36 PM
[No. 17857, June 12, 1922]
In re will of Josefa Zalamea y Abella, deceased. PEDRO

UNSON, petitioner and appellee, vs. ANTONIO ABELLA
ET AL., opponents and appellants.
1. WILLS; NON-PRODUCTION OF ONE ATTESTING

WITNESS.·Though the general rule is that, if opposition is
presented to the probate of a will, all the attesting witnesses
must be produced; nevertheless, there are exceptions to this
rule, to wit: When one of the witnesses is dead, or cannot be
served with process of the court, or his reputation for truth
is questioned, or he appears to be hostile to the cause of the
parties seeking the probate of the will. In such cases the will
may be admitted to probate, if upon the evidence actually
introduced the court is satisfied of the due execution of the
will, inasmuch as even if said witness had been produced
and had testified against the application, the result would
not have been changed, if the court was satisfied upon the
evidence adduced that the will has been executed in the
manner prescribed by the law.
2. ID.; INVENTORY MADE PART OF A WlLL;

ATTESTATION CLAUSE.· When in a will reference is
made to an inventory of the properties of the testator, which
has thus been made a part of the will, if the will has an
attestation clause that meets the requirements of the law,
no other attestation clause is necessary for the said
inventory, but that of the will will be sufficient for the
validity both of the will and the inventory.
495
VOL. 43, JUNE 12, 1922 495
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Unson vs. Abella
3. ID.; ID.; PAGING IN ARABIC NUMERALS.·Paging in

inventory with Arabic numerals is in compliance with the
spirit of the law, requiring that the paging of a will be made
in letters, and is just as valid as paging with letters A, B, C,
etc., under the circumstances stated in the case of Aldaba
vs. Roque (43 Phil., 378).
APPEAL from a judgment of the Court of First Instance of

Laguna. Paredes, J.
The facts are stated in the opinion of the court.
Crispin Oben for appellants.
Pedro Guevara and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60

years old, who was residing in the municipality of
Pagsanjan, Province of Laguna, executed her last will and
testament with an attached inventory of her properties,
Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The
testatrix died on the 6th of January, 1921, and, as the
record shows, the executor appointed in the will, Pedro
Unson, filed in the Court of First Instance of Laguna on the
19th of January of the same year an application for the
probate of the will and the issuance of the proper letters of
administration in his favor.
To said application an opposition was presented by
Antonio Abella, Ignacia Abella, Avicencia Abella, and
Santiago Vito, alleging that the supposed will of the
deceased Zalamea was not executed in conformity with the
provisions of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation
clause in it, nor was it signed by the testatrix and the
witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the
opposition of the contestants, and ordered the probate of
the will, Exhibit A, and the inventory, Exhibit A-1, hold-
496
496 PHILIPPINE REPORTS ANNOTATED

Unson vs. Abella
ing that both documents contained the true and last will of
the deceased Josefa Zalamea.
From the judgment of the court below, the contestants
have appealed, and in their brief they assign three errors,
which, in their opinion, justify the reversal of the judgment
appealed from.
The first error assigned by the appellants as committed
by the court below is its finding to the effect that Exhibit A,
said to be the will of the deceased Josefa Zalamea, was
executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in
support of the first assignment of error tend to impeach the
credibility of the witnesses f or the proponent, specially
that of Eugenio Zalamea. We have made a careful
examination of the evidence, but have not found anything
that would justify us in disturbing the finding of the court
a quo.' The attesting witnesses, Eugenio Zalamea and
Gonzalo Abaya, clearly testify that together with the other
witness to the will, Pedro de Jesus, they did sign each and
every page of the will and of the inventory in the presence
of each other and of the testatrix, as the latter did likewise
sign all the pages of the will and of the inventory in their
presence.
In their brief the appellants intimate that one of the
pages of the will was not signed by the testatrix, nor by the
witnesses on the day of the execution of the will, that is, on
the 19th of July, 1918, basing their contention on the
testimony of Aurelio Palileo, who says that on one occasion
Gonzalo Abaya told him that one of the pages of the will
had not been signed by the witnesses, nor by the testatrix
on the day of its execution. Palileo's testimony is entirely
contradicted by Gonzalo Abaya not only in the direct, but in
the rebuttal, evidence as well. To our mind, Palileo's
testimony cannot prevail over that of the attesting
witnesses, Gonzalo Abaya and Eugenio Zalamea. The
appellants impeach the credibility of Eugenio Zalamea, for
having made a sworn declaration before the justice of the
peace of Santa
497
VOL. 43, JUNE 12, 1922 497

Unson vs. Abella
Cruz, Laguna, before the trial of this case, to the effect that
he was really one of the witnesses to the will in question,
which fact was corroborated by himself at the trial. The
appellants take Zalamea's testimony in connection with the
dismissal of a criminal case against a nephew 6f his, in
whose success he was interested, and infer from this fact
the partiality of his testimony. We deem this allegation of
little importance to impeach the credibility of the witness
Zalamea, especially because his testimony is corroborated
by the other attesting witness, Gonzalo Abaya, and by
attorney Luis Abaya, who had prepared the testament at
the instance of the testatrix. The foregoing is sufficient for
us to conclude that the first assignment of error made by
the appellants is groundless.
The appellants contend that the court below erred in
admitting the will to probate notwithstanding the omission
of the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent
stated to the court that they had necessarily to omit the
testimony of Pedro de Jesus, one of the persons who appear
to have witnessed the execution of the will, for there were
reasonable grounds to believe that said witness was openly
hostile to the proponent, inasmuch as since the
announcement of the trial of the petition f or the probate of
the will, said witness has been in frequent communication
with the contestants and their attorney, and has refused to
hold any conference with the attorneys for the proponent.
In reply to this, the attorney for the contestants, said to the
court, "without discussing for the present whether or not in
view of those facts (the facts mentioned by the attorneys for
the petitioner), in the hypothesis that the same are proven,
they are relieved from produQing that witness, for while it'
is a matter not decided, it is a recognized rule that the fact
that a witness is hostile does not justify a party to omit his
testimony; without discussing this, I say, I move
498
498 PHILIPPINE REPORTS ANNOTATED .

Unson vs Abella
that said statement be stricken out, and if the proponent

wants these facts to stand in the record, let him prove
them." The court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney f or the
appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil.,
145), recently decided by this court, in deciding the
question whether a will can be admitted to probate, where
opposition is made, upon the proof of a single attesting
witness, without producing or accounting for the absence of
the other two, it was said; "while it is undoutedly true that
an uncontested will may be proved by the testimony of only
one of the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared
after an elaborate examination of the American and
English authorities- that when a contest is instituted, all of
the attesting witnesses must be examined, if alive and
within reach of the process of the court.
"In the present case no explanation was made at the trial as to why
all three of the attesting witnesses were not produced, but the
probable reason is found in the fact that, although the petition for
the probate of this will had been pending from December 21, 1917,
until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set f or the hearing;
and it is probable that the attorney for the proponent, believing in
good faith that probate would not be contested, repaired to the court
with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case
to go to proof without asking for a postponement of the trial in order
that he might produce all the attesting witnesses.
"Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply any basis f
or changing the rule expounded in the case above referred to; and
were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case
499
VOL. 43, JUNE 12, 1922 499

Unson vs. Abella,
on the ground that the execution of the will had not been proved by
a sufficient number of attesting witnesses.
"It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of the cause
f or determination in that court or upon the occasion of the filing of
the motion f or a new trial. Accordingly it is insisted for the appellee
that this question cannot now be raised for the first time in this
court. We believe this point is well taken, and the first assignment
of error must be declared not to be well taken. This exact question
has been decided by the Supreme Court of California adversely to
the contention of the appellant, and we see no reason why the same
rule of practice should not be observed by us. (Estate of McCarty, 58
Cal., 335, 337.)
"There are at least two reasons why the appellate tribunals are
disinclined to permit certain questions to be raised for the first time
in the second instance. In the first place it eliminates the judicial
criterion of the Court of First Instance upon the point there
presented and makes the appellate court in effect a court of first
instance with reference to that point, unless the case is remanded
for a new trial. In the second place, it permits, if it does not
encourage, attorneys to trifle with the administration of justice by
concealing from the trial court and from their opponent the actual
point upon which reliance is placed, while they are engaged in other
discussions more simulated than real. These considerations are, we
think, decisive.
"In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would prove
an embarrassment to this court in the administration of justice in
the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation
below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it.
What we mean to declare is that when we believe that substantial
justice has been done in the Court
500
Vnson vs. Abella
of First Instance, and the point relied on for reversal in this court
appears to be one which ought properly to have been presented in
that court, we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the
question relates to a defect which might have been cured in the
Court of First Instance if attention had been called to it there. In
the present case, if the appellant had raised this question in the
lower court, either at the hearing or upon a motion for a new trial,
that court would have had the power, and it would have been its
duty, considering the tardy institution of the contest, to have
granted a new trial in order that all the witnesses to the will might
be brought into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first raised by
the appellant in this court. We hold that this is too late.
"Properly understood, the case of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the ruling we now make, for it
appears from the opinion in that case that the proponent of the will
had obtained an order for a republication and new trial f or the
avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless
subsequently f ailed without any apparent reason to take their
testimony. Both parties in that case were therefore fully apprised
that the question of the number of witnesses necessary to prove the
will was in issue in the lower court."
In the case at bar, we do not think this question properly to

have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial
court, he contended that the will could not be admitted to
probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this
witness raises a presumption against the pretension of the
proponent. The trial court found that the evidence
introduced by the proponent, consisting of the testimony of
the two attesting witnesses and the other witness who was
present at the execution, and had charge of the preparation
501
VOL. 43, JUNE 12, 1922 501
Unson vs. Abella
of the will and the inventory, Exhibits A and A-1, was

sufficient. As announced in Cabang vs. Delfinado, supra,
the general rule is that, where opposition is made to the
probate of a will, the attesting witnesses must be produced.
But there are exceptions to this rule, for instance, when a
witness is dead, or cannot be served with process of the
court, or his reputation for truth has been questioned or he
appears hostile to the cause of the proponent. In such
cases, the will may be admitted to probate without the
testimony of said witness, if, upon the other proof s
adduced in the case, the court is satisfied that the will has
been duly executed. Wherefore, we find that the non-
production of the attesting witness, Pedro de Jesus, as
accounted for by the attorney for the proponent at the trial,
does not render void the decree of the court a quo, allowing
the probate.
But supposing that said witness, when cited, had
testified adversely to the application, this would not by
itself have change the result reached by the court a quo, for
section 632 of the Code of Civil Procedure provides that a
will can be admitted to probate, notwithstanding that one
or more witnesses do not remember having attested it,
provided the court is satisfied upon the evidence adduced
that the will has been executed and signed in the manner
prescribed by the law.
The last error assigned by the appellants is made to
consist in the probate of the inventory, Exhibit A-1, despite
the fact that this exhibit has no attestation clause in it, and
its paging is made in Arabic numerals and not in letters.
In the third paragraph of the.will, reference is made to
the inventory, Exhibit A-1, and at the bottom of said will,
the testatrix Josefa Zalamea says:
"In witness whereof, I sign this will composed of ten folios including
the page containing the signatures and the attestation of the
witnesses; I have likewise signed the inventory attached to this will
composed of ten folios in the presence of Messrs. Gonzalo Abaya,
Eugenio Zalamea, Pedro de Jesus, in this municipality of
Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."
502

Unson vs. Abella
And the attestation clause is as follows:
"The foregoing will composed of ten folios including this one

whereunto we have affixed our signatures, as well as the inventory
of the properties of Doña Josefa Zalamea y Abella, was read to Doña
Josefa Zalamea y Abella, and the latter affixed her name to the last,
and each ,and every page of this will and inventory composed of ten
folios in our presence; and she declared this to be her last will and
testament and at her request we have affixed hereunto our
respective signatures in her presence and in the presence of each
other as witnesses to the will and the inventory this 19th of July,
1918, at Pagsanjan, Laguna, P. I.
(Sgd.) "GONZALO ABAYA,
"EUGENIO ZALAMEA,
"PEDRO DE JESUS."
In view of the fact that the inventory is referred to in the

will as an integral part of it, we find that the foregoing
attestation clause is in compliance with section 1 of Act No.
2645, which requires this solemnity for the validity of a
will, and makes unnecessary any other attestation clause
at the end of the inventory.
As to the paging of the will in Arabic numerals, instead
of in letters, we adhere to the doctrine announced in the
case of Aldaba vs. Roque (p. 378, ante), recently decided by
this court. In that case the validity of the will was assailed
on the ground that its folios were paged with the letters A,
B, C, etc., instead of with the letters "one," "two," "three,"
etc. It was held that this way of numbering the pages of a
will is in compliance with the spirit of the law, inasmuch as
either one of these methods indicates the correlation of the
pages and serves to prevent the abstraction of any of them.
In the course of the decision, we said: "It might be said that
the object of the law in requiring that the paging be made
in letters ,is to make falsification more difficult, but it
should be noted that since all the pages of the testament
are signed
503
VOL. 43, JUNE 12, 1922 503

Unson vs. Abella
at the margin by the testatrix and the witnesses, the

difficulty of forging the signatures in either case remains
the same. In other words the more or less degree of facility
to imitate the writing of the letters A, B, C, etc., does not
make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity
of the testament, consisting in the signatures on the left
margins of the testament and the paging thereof as
declared in the attestation clause, the holding of this court
in Abangan vs. Abangan (40 Phil., 476), might as well be
repeated:
" The object of 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 guaranty their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it 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, 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/
"In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way, and it was held: 'ln a will consisting of two
sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at
the bottom by the three witnesses, it is not necessary that both
sheets be further signed on their margins by the testator and the
witnesses, or be paged.'
"This means that, according to the particular case, the omission
of paging does not necessarily render the testament invalid.
504

Unson vs. Abella
"The law provides that the numbering of the pages should be in

letters placed on the upper part of the sheet, but if the paging
should be placed in the lower part, would the testament be void for
this sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the
sheets of the testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not. This court
has already held in Avera vs. Garcia and Rodriguez (42 PhiL, 145):
" 'lt is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of
each and every page; and it is undeniable that the general doctrine
is to the effect that all statutory requirements as to the execution of
wills must be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court.'
" 'Still some details at times creep into legislative enactments
which are so trivial that it would be absurd to suppose that the
Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each page·rather
than on the right margin·seems to be 6f this character. So far as
concerns the authentication of the will, and Of every part thereof, it
can make no possible difference whether the names appear on the
left or on the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918,
not reported), this court declared a will void which was totally
lacking in the signatures required to be written on its several pages;
and in the case of Re Estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the necessary signatures on
the margin of each leaf (folio), but not in the margin of each page
containing written matter.'
"We do not desire to intimate that the numbering in letters is a
requisite of no importance. But since its prin-
505
VOL. 43, JUNE 13, 1922 505

Warner, Barnes & Co. vs. Inza
cipal object is to give the correlation of the pages, we hold that this
object may be attained by writing one, two, three, etc., as well as by
writing A, B, C, etc."
We see no reason why the same rule should not be applied

where the paging is in Arabic numerals, instead of in
letters, as in the inventory in question. So that, adhering to
the view taken by this court in the case of Abangan vs.
Abangan, and followed in Aldaba vs. Roque, with regard to
the appreciation of the solemnities of a will, we find that
the judgment appealed from should be, as is hereby,
affirmed with the costs against the appellants. So ordered.
Araullo, C. J., Malcolm, Avanceña, Ostrand, Johns,

and Romualdez, JJ., concur.
Judgment affirmed.
_____________
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PHILIPPINE REPORTS ANNOTATED VOLUME 043 9/15/20, 5:36 PM

[No. 17857, June 12, 1922]

In re will of Josefa Zalamea y Abella, deceased. PEDRO

1. WILLS; NON-PRODUCTION OF ONE ATTESTING

2. ID.; INVENTORY MADE PART OF A WlLL;

VOL. 43, JUNE 12, 1922 495

Unson vs. Abella

3. ID.; ID.; PAGING IN ARABIC NUMERALS.·Paging in

APPEAL from a judgment of the Court of First Instance of

On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60

496 PHILIPPINE REPORTS ANNOTATED

VOL. 43, JUNE 12, 1922 497

498 PHILIPPINE REPORTS ANNOTATED .

that said statement be stricken out, and if the proponent

VOL. 43, JUNE 12, 1922 499

500 PHILIPPINE REPORTS ANNOTATED

Vnson vs. Abella

In the case at bar, we do not think this question properly to

VOL. 43, JUNE 12, 1922 501

Unson vs. Abella

of the will and the inventory, Exhibits A and A-1, was

502 PHILIPPINE REPORTS ANNOTATED

And the attestation clause is as follows:

"The foregoing will composed of ten folios including this one

In view of the fact that the inventory is referred to in the

VOL. 43, JUNE 12, 1922 503

at the margin by the testatrix and the witnesses, the

" The object of the solemnities surrounding the execution of wills is

504 PHILIPPINE REPORTS ANNOTATED

"The law provides that the numbering of the pages should be in

VOL. 43, JUNE 13, 1922 505

We see no reason why the same rule should not be applied

Araullo, C. J., Malcolm, Avanceña, Ostrand, Johns,

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