VOL. 46, No.

12

OFFICIAL GAZETTE

6168

be sentenced in every case to support the offspring of the

offended party, if there be any; but with regard to the
increase of the indemnity asked for, we find no cause for
altering the decision on that point, because we believe that
the case invoked by the Solicitor General is not in point
with the case at bar, for that case refers to a multiple rape
committed by four persons against a single offended party,
while in the present case there is only one offender.
Wherefore, upon modification of the decision appealed
from, the accused is hereby sentenced to undergo an inde
terminate penalty of from eight (8) years and one (1) day
of prisi6n mayor to fourteen (14) years, eight (8) months
and (1) day of reclusion temporal, with the accessory
penalties prescribed by law, to indemnify eie offended party
in the sum of P500, without. subsidiary imprisonment in
case of insolvency, to support the offspring of said offended
party, if there be any as a result of the offense, and to pay
the costs.
Torres, Pres. J., and Felix, J., concur.
Judgnient modified.

[No. 2300-R.

Janua!'y 19, 1949]

In the matter of the testate estate oi the deceased Filo.

mena Bermoy; EMBRENCIANA P. DE VELOSO, petitioner
and appellant, vs. JOSE V. PUZON ET 4.L., oppositors
and appelleE.
WILL; PROBATE; NON-COMPLIANCE VllTH FORMAL REQUISITES ANNULS
Vlir,L; CAS.E AT BAR.-The attestation cause in the inbtant
case has /ailed to rnenthm that the will to whih ;t was at
tached or any page thereof had been signed by the testatrix,
or that s0mebody else, under her express request, signed her
nar.1e,

and

th::lt

she

affixed

there to

her thum1'mark in

-It

presence of each and every one of the witnesses.

the

has also

failed to mention that the witnesses signed said will and every
one of the pages of which it consists in the presence of each
,other and of the test_trix.

The omission of these two essential

facts o the validity of the will renders th same null and void.
(Uy Coque

vs.

48 Phil., 506;

Navas L. Sioca, 43 Phil., 405; Safio

Gumban

vs.

vs.

Gorecho, 50 Phil., 30;

Quintana,

Quinto

vs.

Horata, 54 Phil., 481.)

APPEAL from a judgment of the Court of First Instance

of Leyte.

Diez, J.

The facts are stated in the opinion of the court.

Gabino R. Veloso for appellant.

Jovencio Borneo for appelJee.

RODAS, J.:

Nearly two years after the death of Filomena Bermy,

Jose Puzon, one of her heirs, filed an application for the
administration of the estate left by her, or to be more
specific, on November 9, 1945, being Special Proceedings

DECEMBER, '.r950
No.

OFFICIAL GAZETTE

6169

16 of the Court of First Instance of Leyte, in which he

himself was appointed special

administrator

on

March

30, 1946.
On November 23,

1945, Emerenciana de Veloso, another

heir of the deceased Filomena Bermoy, filed an application

for the probate of her so-called last will and testament,
which was Special Proceedings No.

48 of the same court.

Opposition was filed to said application by Jose Puzon, ,

Maximina Puzon, Lourdes Puzon, Primopusa Valenzona,
Iluminada Valenzona,

p aricio

Valenzona, Sofronia Valen

zona, alleged. to be legitimate heirs of the deceased.

At

the trial of said two cases, the parties entered into the
following agreement of facts :

1. That Filomena Bermoy had ahvays been residi11g in

barrio Caridad, municipality of Baybay, Leyte, and was
the lawful widow of Benito Valenzona, who

de"isl

on No

vemebr 11, 1914 and that Filomena Bermoy died on June

28, 1943 in said barrio;

2. That the couple had three children nr.med Maura Va

lenzona who died in 1005, Desiderio ValeEzona 'Yho died on

N ovcmber, 1916 and Leopolda Valenzuna;

3. That Maura Valenzona left three children named

Jose Puzon, Cristeta and Isabelo Puzon, this bst one having
died in

1941, and left five natural children, all minors,

namely: Mximo, Remedios, Amada, Bonifacia and Lour

des, all urnamed Puzon;

4. That Desiderio Valenzona left six legitimate children,

'Jll May 6, 1946:

to \vit: Pri1nopusa; Clotilde, \vhv died

Iluminaclo; Caricio; Eufrcnr. and Abdesa, all of leg3l age.

Clotilde Valenzona left three legitimate children, all minors,

named Cecilia de Leon; J\faria Della d8 Lon aPd Eufro:r..i o
de Leon;

5. That Leopolcla Valenzona was first married to Lino

Penaloza by ,,-horn she had five child:'._en named: Crispina
Penaloza de l\Iiraftor, P:'._oculo Penaloza, l\Ia!.ia Penaloza
de Vicenciv, Lou:des Penaloza de Bibas and Emerenciana
Penaloza de Vel0so; and

ti. That Leoi;olda Valenzona contracted a second mar

riage \Vith one ?eciro de Veyra, but they had no issue.
Both spOLlses were taken by the
October,

guerrilla forces

in

rn43 arid were seen no more.

The so-caled last will and testament of Filomena Be1moy, marked Exhibit B, in which she willed all her estate
exclusively in favor of her daughtei Leopolda Valenzona,
written in the Visayan dialect and c'om) csed uf three pages
is dated Septe:ner 2,

1942 and thumbm[<rked by her an<l

signed by the witnesses Roque Rom, Isaias Bartolini and

Camilo Talam, while the attestation clause was signed by
Camilo Talam, Gregorio Delaganar and Mateo l\111rillo.
Mateo Murillo, the notary public who prepared the so
called lrtst will and testament and signed the same as a

6170

OFFICIAL GAZETTE

VOL. 46, No. 12

witness, as well as Isaias B;lTtolini, another instrumental

witness, testified that the ;fhumbmarks appearing on the
margines of the first two pages and at the foot of the will
were affixed by the testatrix Filomena Bermoy inside her
room and then brought out by Pedro de Veyra who caused
them and others to sign the same as witnesses to the effect
that said document was the la.Yill and testament of
Filomena Bermoy, when in facYn one of said witnesses saw
the testatrix affix her thumbmark to said last will and
testament. Isaias, however, added that he signed as wit
ness to a document which Pedro de Veyra showed him,
purporting to be his appointment as administrator of the
estate of the testatrix Filomena Bermoy.
On the other hand, the witness Roqu0 Rom, Gregorio
Delaganar and Camilo Talam testified that they were sent
for by the testatrix Filomena Bermoy, a woman 93 years
old, whom they had knovm for a long time; that when all
the persons called to sign the document as witnesses were
pre3ent around a :able in the living room, to wit: Mateo
Murillo, Tsaias Bartolini, RoQue Rem, Gregorio Delaganar
and Camilo Talam, the testatrix requested Mateo Murillo
to read said Exhibit B to he-.:' and to all the witnesses; tl1at
after the same had been rear:, and she having stated that
said document was her laE:t will and testament, she aked
1{0que Rom to sign the same for her because she could not r
see nor write her name, and Roque Rom did so at t:he
expressed request of said testatrix and at the same time
signed the same on all the nmrgfos of the first. two pages
as -nell as at th2 foot o.f the will in her preseace an i:i1
the presence of II the witne.c;;ses; that after having signed
her name, the bstatrix requested th8 notary public Mateo
Murillo- to a:::;siRt her in affixing her tnumbmark over her
signatur2 to all the pages thereof in the presence of each
and every one of the witPesses, and thereafter the wit
nesses in turn signed said document on the left margins
ni the first two pages and at the bottom thereof as well /
as at the end of the eittestafrm clause in the presence of
the testatrix anc: each and every one of the said witnesses.
Th2 ""itness Roque Rom testifien that the spouses Pedro
de Veyra and Leopolda Valem.ona were both present in
the living rool:l where the document was sig-ned by the tes
tatrix and the 'vitnesses, 'yhereas the other wibess Gre
gorio Delaganq,r said that although LL;opulda Valenzona
was there present at the tiine of the signing, her husband,
Pedro de Veyra, was in anotre1 house. Camilo Talam in
turn tstified that although said spouses were sometimes
present in the living room where the signing took place,
they used to go in and out, but whrn Filorr..en['. Bermoy
thumbmarked said document, Pedro de Veyra was not
pnsent.

OFFICIAL GAZETTE

DECEMBER, 1950

6171

Tn view of the foregoing, the lower court concluded:

"En conclusion, el Juzgado es de opinion que no expresandose en
el testamento propio ni en la clausula de atestiguamiento que las
testigos han firmado el testamento en presencia de la testadora y
en la de cada uno de e1los, el testamento no se ha otorgado de acuerdo
con la ley; y su legalizaci6n debe ser denegada.
*

"Por las razones expuestas,

el Juzgado

deniega

la

legalizaci6n

del testamento Exhibito B."

The appellant assigns but one error, to wit:

"El Juzgado Inferior err6 al denegar la legalizaci6n del tes:amento

Exhibit B, fundandose en que su clausula de atestjguamiento no

certifica que los testigos lo hayan firmado en presencia de la testadora
y de cada uno de ellos."

In discussing the above-quoted error the attorne.vs for

the appellant raise two questions, to wit:
"1. El criterio hoy predominanh en la Corte Suprema es absolu
tamenfe leberal en cuarto a la legalizaci6n de testa:.nentos.
"2. Hay disposiciones de las reglas de los tribunales

(Rules of

Courts) que aparentemente pe:::miten pruebas aliunde a fin de suplir

las deficiencias c:le una clausula de atestiguamiento."

The attestation clause in quedion reads:

"We, the undersigned, witnesss to this last will and testa:r..1ent
of FiloMena Bermoy certify that t1e aoove mentioned is te last
wiil an<l testament of Filomena Bermoy which she published and
made known

said testament, and that

we1

the witnesses will sign

our names hereuncer in ordPr to attest 'to truth that this testament
consist two pages, and or;. tte third page is our atteEtc.ition as wit
ntsses_ and we also sign2d our n!3mes on all the left margins of e1i
testament,

this

2nd

day

of

Septernrer,

1941,

at

barrio

Caridad,

municipality of Baybay, Province of Lcyte, Philippines."

It is onter1rled by the appellant that the criterion ob

taining in 3everal decisions of the Supreme Court is ab
sclutely liberal \Vith respect to the admission of wills to
probate, and to that effect cited sevral decisions of our
honJrable Supreme Conrt.
Section 618 ot Code cf Civil Procedure, as far as 1t is
relevani; to the question at issue, reads:
"*

The attestation shall state }le uumber

of sheets or

pag-es used, P.pon 'Vhich the wiJl is writt.::,n, and the fact that the
testator signed the will &:rd e:er:,.- paise

ttereof,

or caused

some

other person to write his name, under his express airect;un, in foe
presence of three witnesses, and the btte:r witnessed and signed the
will and all pages thereof in the presence of the tes+a tor and of each
other."

From the !:!bove-quoted provi;:;iou, it may be gathered

that t.re attestation clause should state: (1) the nmber /
of sheets or pages of which the will consists; (2) the fact
that the testator signed the will and e,e:::y page thereof,
or caused some other person to write his name under hb
expressed direction; ( 3) that the signing of the will on
each and every page thereof by the testator or by some-

617'2

OFFICIAL GAZETTE

VOL. 46, No. 12

body else under his expressed direction should be made in

the presence of three witnesses; (4) that the three wit
nesses signed the will and all the pages thereof in the
presence 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 will and tes
tament of Filomena Bermoy published and made known
therein; (2) that the witnesses did sign thei names there
under in order to attest to the truth that said testament
consists of two pages; (3) that on the third page thereof
appears their attestation as \Vitnesses, to which they affixed
or signed their names and on all of the left margins of
the testament on the 2nd day of September, 1941, at barrio
CP.,ridad, municipality of Baybay, Province of Leyte, Phil
ippine:J.
Said attestation clause has failed to mention that the
testatrix signed the will and each and every one of the
pages thereof, or thdt she had caused her name to be
signed by one of the witnesses and affixed her thumbmark
thereto i11 the presence of each and every on of the wit
nesses who sjgned the attestation clause. H has also failed
to mention that the witnesses signed said will and all of the
pages in the presence of the testatrix and of tach and ever3r ,
one of them.
A close study of the cases decided by onr honorable
Supreme Court on the question at issua shows that if the
attestation clause of a will :fails to show that the will was
signed by the testator on each and every page thereof, in
the presence of the instrumental witnesses, and that the
later in turn signed the Jame on each and everr page in
the presence of the testator and each and everT on of
tl1ePJ., the will has alvrnys bP.en considered r1ull and void.
It is true, however, that in some instances, the failure
to mention that each and every one of the pages of the will
had been signed in the presence of the witnesses, provided
the same shows that the will was signed by the testator
in the presence of th witnesses, an.d that the fact that
all the pages the1eof has been signed fly the testator and
said witnesses, may })_Q():Wl!. by n jnspec_t_iQ!! Qf. th_.wilJ
itslf, has :iot been <;Qnsj<Jer.ed a_materiaLdJect, although
s uc'i1- do frb1ena.-s Len eversed. in later decisions.
In effect, in the case of VY _yo_gy_.. -12$.. N-YCi. L. Sioca,
43 Phil., 405, the attestation clau% contested -:reacf as
follov3:
__

"We, l;l:e undersignerl witneses of this will, stat that it :has been
shown to us by the iestatrix as her last will and testament.

And as

she cannot sign her name, she asked thac Mr. Filomeno Piczon sign
her name in the presence of each of us, and each of us, the Nit
nesses, also signed in the presence of the testatrix."

Said attestation clause \VaR considered defective for its

failure to state the number of pages contained in the will
and that the witnesses signed in the presence of each other.

DECEMBER, ] 950

OFFICIAL GAZETTE

6173

The will was, therefore, considered null and void and was
not admitted to probate.
In the case of Sano vs. Quintana, 48 Phil., 506, the
following doctrine was laid down:
"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."

(Syllabus)

In the case of Gumban vs. Gorecho, 50 Phil., 30, the

attestation clause quoted in the dissenting opinion of Jus
tice Romualdez read as follows:
.

"*

That the testator Eustaquio Hagoriles signed said will

in our presence and that we signed the said will in the presence of
the testator and in the presence of each and everyone of us; said
will consists of ten used pages, including this last page."

The Supreme Court in denying the probate of the will

and reversing the decision appealed from laid down the
folbwing doctrine:
".An attestation clause which does not recite tnat the wimesses
s:gned the will and t:ach and every pa15e thcmof on the left margin
in the prSP.ce of the testator i.::; defective, and. such a defect a!lnuls
the w:ll."

In the ease of Quinto 'vs. l\forata, 54 Phil., 481, th.3

attstation clause read as follows:
"Nosotros los 'Jue fi.rmar,1os al final de este testa1nento, Florentino
Joya, Aguedo 8o::ian0 y Teodoro Eleza damos fo, de ha!:>er visto o
presenciado e1 acto de finrar
esposos

regorio

Pueblo

en

esta eqcdtura o testament0 de Jos

Carmen Quinto;

lo

firmaron

llos

en

nuestia predencia, v que no::;otros ?::is testigos, Jo 5.rmamos en pre

senb d3 cada un;) de noqotros, hoy cle noviemlire <le 1920.

Este

tstamento esta compuesto de tres fojas utile.:::;"

th2 court said:

"As wili be noted, the attestation clause contravenes the express
:equirements of section 613 of At No. 190, as amended Ly Act No.

2645, in two ways: First, it fails to state that each and every page
of tI'.e will was signed by the testators and the witnesses; ann,
second, it fails to state tl:at the witnefses sig-ned each and every
page of the will iri the presence oi tl-ie testators,"

and in view thereof, affirllled the deciion appealed :from

disallowing the will.
Contrary, however, tc the docrii:e laid dmvn in the
above-(fuoted <lecisior..s in the case of Na:yve vs. Mojal arid
Aguilar, 47 Phil., 152, in whi..;i1 the attestation clause iead
as follows:
"Signed and declared by the testator Don Antonio

Mojal

to be

his last will and testament in the presence of each of us, and at the
request of said testator Don Antonio l\frjal, we signed this will in
the presence of each other and of the testator.
"PEDRO C.\RO

MORCO
"ZOILO MASINAS"

"SILVERIO

6174

VOL. 46, No. 12

OFFICIAL GAZETTE

The Supreme Court said:

"With regard to the last defect pointed out,

namely,

that the

testator does not appear to have signed on all the sheets of the will
in the presence of the three witnesses, and the latter to have attested
and signed on all the sheets in the presence of the testator and of
each other, it must be noted that in the attestation clause above

'in the presence of

'in the presence of each

s2t out it is said that the testator signed the will

each of the witnesses' and

other and of the testator.'

the latter signed

So that, as to whether the testator and

the attesting witnesses saw each other sign the will, such a require
ment was clearly and sufficiently complied with.

What is not stated

in this clause is whether the testator and the witnesses signed all the
sheets of the will.
"The act of the testator a!ld the witnesses seeing reciprocally the
signing o: the will is one which cannot be proven by the mere exhibi
tion of the will unless it is stated in th8 document.

And this fact

is expressly stated in the attestation clause now before us.

But the

fact of the testator and the witnesses having signed all the sheets
of the will may be proven by the mere examination of the document,
although it does not say anything about this, and if that is the fact,
as it is in the instant case, the danger of fraud in this respect,
which is what the law tries to avoid, does not exist.
"Therefo:::e, as in the instant; case the fact that he testator and
the witnesses signed each 'lnd every page of the will is proven by the
mere examination

of the sig-natures in

the will,

the

omission

to

expressly state such evident fact docs not invalidate the will nor
preven+- its probate.
"Tbe order appt>aled from is ciffi1med with the costs against the
appellant.

So ordererl.."

This was the most liberal construction given by our highest

Tribunal to the provisions of article 618, Act 190, regarding tbe failure of the attestation clause to menti0n the
fact that the te3tator anq the witnes% signed each and

every !1age of tl::e will by conside:!:'irig 8aid omi3sion insig

nificant and not affecting the validity of the .. vill, although

in subsequent aecisions herei;:iabove mentioned, the Sup

reme Court re-1ersecl itself a:ad reestablished the tormer

doch ine that such omission was material, and as such was/

a sufficient ground on which the nullity of the will could

be predicated.

The attestation clause in the instant case has fail.YI to

mention that the will to which it was attac1ed or ny page

thereof had heeri signE:.d by the testatrix, or that somebody

else, under h2r expressed request, 8igned 11et name, and

t!'la: she affixed ther12to hei thumhmark in the presence

of eat:h and everv one r,f the Y.ritnesses.
v

'

It has also failed

to mention that the witnesses signed said will and every

one of the pages of which it consists in the presence of

each other .:md of the testatrix.

The omission of these

two essentia facts to the validity of the will renders

the same null and void.

case

of

Nayve

vs.

The doctrine laid down in the

Mojal and Aguilar,

supn,

is

not

applicable in the instant case, because the omission with

which we are concerned consists not oniy in the failure to

state the fact that the testatrix signed each and every one

of the pages of i,,vhich the will consists, but also in the fact

DECEMBER, 1950

6175

OFFICIAL GAZETTE

that she signed said will in the presence of the witnesses.

Moreover, said attestation clause failed likewise to men

tion the fact that the witnesses signed the will in the

presence of each other and of the testatrix, which is ano

ther substantial omission to invalidate the will.

The proponent of the will tried to establish through

the witnesses Roque Rom, Gregorio Delaganar and Camilo

Talam that the testatrix signed each and every one of the

pages of the will in their presence by causing Roque Rom

to sign for her and that she affixed her thumbmark with
the assistance of Mateo Murillo to each and every page of

said will i11 the presence of each and every one of the
witnesses who in turn signed each and every page of the

will in her presence and in the presence of each other,

over and above the objection of the attorneya for the

oppositors.

Said evidence cannot be taken into consider

ation in accordance with the doctrine laid down in the case

of Quinto vs. J\forata, supra, to the effect that "evidence

aliunde hould not be admitted to establish facts not ap

pearing in the attestation clause and where sEch evidence

haE'. been ad!nitted, it should not be given the effect in

tended."

Whcreforn, the judgment api.)ealed from is hereby af

firmed, with cots against the appellant.

Jugo, and De la Rosa, J., co11cur.
Judgment affirmed.

[No. 2655-R.

January l!J, :;_949]

T HE PEOPLE OF THE PHILIPPINES, vlaintiff and appellee, vs.

AHAJA l\1UKALI, Rccused and appellant;

CRIMINAI LAW;

HOMICIDE;

EVIDENCE;

EXTRAJUDICIAL 8ELF-SERVING

S;ATEl\IENT OF ACCUSED, EFFECT.-A self-seving state.nent made

extrajudicially by the accused cannot be used in his favor, but
the incriminating evidence contained therein may be available of
by the prosecution.

(People

vs.

Piring et al.,

SC-G.K

No.

45053, Oct. 19, 1936; 2 Whartun's Criminal Evidence, 11th d.,

!). 1014.)

'

APPEAL from judgment of t!le Court of Fist Instance

0 Sulu.

Villa!obo; J.
l!f

The facts are stated;;fo Jhe opinion of the court.

0

,,

Esclepiades V. V"(1l0iiena for appellant.

Sotfritor-General Felix Bautista Angelo and Assistant

Solicitm-General Manuel P. Barcelona for appellee.

JUGO, J.:

AlajJ Jfal<Jli wgg ieeaged of marder before tilt:! Caart

of First Instance of Sulu and after trial was found guilty
of homicide and sentenced to suffer from eight (8) years
of prisi6n mayor to fourteen (14) years, eight (8) months

and one ( 1) day of reclusion temporal, to indemnify the

heirs of the deceased in the sum of P2,000, with the acces-