Unson vs. Abella

An objection that the proponent of a will failed to produce all attesting witnesses, when not raised in the trial court and relating to a defect that could have been cured below, cannot be raised for the first time on appeal. An inventory attached to and expressly referred to in a will as an integral part thereof need not contain a separate attestation clause if the attestation clause in the will itself covers the inventory and its pages. Paging with Arabic numerals or with letters of the alphabet (e.g., A, B, C) substantially complies with the statutory requirement that pages be numbered in letters, provided the signatures of the testatrix and witnesses appear on the margins and the correlation of the pages is apparent.

Josefa Zalamea y Abella, a 60-year-old single woman residing in Pagsanjan, Laguna, executed her last will and testament on July 19, 1918, together with an inventory of her properties. The documents were signed by the testatrix and by three instrumental witnesses—Gonzalo Abaya, Eugenio Zalamea, and Pedro de Jesus—on each page. She died on January 6, 1921. The named executor, Pedro Unson, promptly sought judicial probate of the will and the issuance of letters of administration.

• Execution and Contents of the Will: On July 19, 1918, Josefa Zalamea y Abella, 60 years old, single, and residing in Pagsanjan, Laguna, executed her last will and testament consisting of ten folios, together with an attached inventory of her properties likewise comprising ten folios. Three witnesses—Gonzalo Abaya, Eugenio Zalamea, and Pedro de Jesus—signed each page of both the will and the inventory in the presence of the testatrix and of one another; the testatrix similarly signed every page in their presence. The will’s third paragraph referred to the inventory, and the dispositive portion stated that the testatrix had “signed the inventory attached to this will composed of ten folios” in the presence of the three witnesses. The attestation clause recited that the will and the inventory had been read to the testatrix, that she signed each page of the ten-folio will and the ten-folio inventory in the presence of the witnesses, and that the witnesses signed in her presence and in each other’s presence.

• Probate and Opposition: Josefa Zalamea died on January 6, 1921. Pedro Unson, the executor designated in the will, filed a petition for probate on January 19, 1921. Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito opposed the petition on the grounds that the will was not executed in conformity with the law, alleging that it was not paged correlatively in letters, lacked an attestation clause, and was not signed by the testatrix and the witnesses in each other’s presence.

• Trial and Lower Court Ruling: At trial, the proponent presented the testimony of attesting witnesses Eugenio Zalamea and Gonzalo Abaya, along with attorney Luis Abaya, who had prepared the testament at the request of the testatrix. The proponent’s counsel stated that the testimony of the third attesting witness, Pedro de Jesus, was being omitted because he was openly hostile to the proponent—having been in frequent communication with the contestants and their attorney and refusing to confer with proponent’s counsel. The trial court ruled that there was “no need” to act on the contestants’ motion to strike the statement, and the contestants took no exception. An attempt was made to impeach the credibility of witness Eugenio Zalamea through the hearsay testimony of Aurelio Palileo, who claimed that Gonzalo Abaya had told him that one page of the will had not been signed on the day of execution; Abaya directly contradicted this in his testimony. The lower court found that the will and inventory had been executed with all the solemnities required by law and ordered their probate.

• Due Execution: The proponent maintained that the testimony of two attesting witnesses and the lawyer who prepared the documents amply established that the testatrix and all three witnesses signed every page of the will and inventory in each other’s presence, satisfying all formal requirements.

• Non-Production of Attesting Witness: The proponent argued that the objection based on the failure to produce Pedro de Jesus could not be raised for the first time on appeal, since the contestants had neither raised it at trial when the omission was disclosed nor in their motion for a new trial. He further contended that the non-production was justified because the witness was hostile, and that Section 632 of the Code of Civil Procedure allowed probate upon other sufficient evidence even without the testimony of all witnesses.

• Validity of the Inventory: The proponent insisted that the attestation clause in the will, which expressly referred to the inventory and its pages, served as the required attestation clause for the inventory as an integral part of the will, and that paging in Arabic numerals did not invalidate the documents because the essential object of the paging requirement—establishing correlation of pages and preventing substitution—was met.

• Lack of Solemnities in the Will: Appellants contended that the supposed will was not executed in conformity with Act No. 2645 because it was not paged correlatively in letters, lacked an attestation clause, and was not signed by the testatrix and the witnesses in each other’s presence.

• Insufficient Proof Due to Missing Witness: Appellants argued that the will could not be admitted to probate because one of the three attesting witnesses, Pedro de Jesus, was not produced, and his voluntary non-production raised a presumption adverse to the proponent’s claim.

• Invalidity of the Inventory: Appellants maintained that the inventory, Exhibit A-1, was fatally defective because it contained no attestation clause of its own and its pages were numbered in Arabic numerals rather than in letters as required by the statute.

• Execution Formalities: Whether the will of Josefa Zalamea was executed with all the solemnities required by Act No. 2645.

• Production of the Attesting Witness: Whether the probate court erred in admitting the will despite the proponent’s failure to produce one of the three attesting witnesses, and whether that issue could be raised for the first time on appeal.

• Probate of the Inventory: Whether the inventory could be probated notwithstanding the absence of a separate attestation clause and the use of Arabic numerals instead of letters for paging.

• Execution Formalities: The will was executed with all required solemnities. The positive, corroborated testimony of the two attesting witnesses who testified at trial, together with that of the attorney who prepared the will, established that the testatrix and all three witnesses signed each page of the will and the inventory in the presence of one another. The contrary hearsay account given by Aurelio Palileo was directly contradicted by the witness it was attributed to and could not overcome the direct evidence of due execution. The credibility of Eugenio Zalamea was not impaired by an alleged interest in a nephew’s unrelated criminal case.

• Production of the Attesting Witness: The objection based on the non-production of Pedro de Jesus was not entertained because it was not raised in the court below, whether at the submission of the case or upon motion for a new trial. The rule that a contested will must be proved by all available attesting witnesses (Cabang vs. Delfinado) does not operate when the defect could have been readily cured had it been timely called to the trial court’s attention; in such a case, it cannot be raised for the first time on appeal. This principle promotes judicial efficiency and discourages litigants from withholding points that could be corrected at the trial level. Even if considered on the merits, the non-production was justified: the hostility of the witness had been disclosed, and Section 632 of the Code of Civil Procedure permits probate if the court is satisfied upon other evidence that the will was duly executed. The presence or adverse testimony of the missing witness would not have altered the result.

• Probate of the Inventory: The inventory required no separate attestation clause. The attestation clause in the will itself explicitly referred to the inventory as an integral part, identified its number of folios, and declared that the witnesses signed both the will and the inventory in the presence of the testatrix and each other. This fully satisfied the requirement of Act No. 2645. As to paging, the use of Arabic numerals instead of words substantially complied with the law. Citing Aldaba vs. Roque and Abangan vs. Abangan, the prime object of paging is to evidence the correlation of pages and prevent abstraction or substitution; that object is equally achieved whether the pages are numbered in words, letters of the alphabet, or Arabic numerals, so long as the pages also bear the signatures of the testatrix and witnesses on the margin. The law does not demand a rigid literalism that would defeat the testatrix’s wishes where no prejudice or increased risk of fraud is shown.

• Waiver of Objection to Failure to Produce All Attesting Witnesses — When the proponent of a will omits to produce all attesting witnesses in a contested probate, and the opponent fails to raise that specific objection in the trial court, either at the hearing or in a motion for new trial, the objection cannot be asserted for the first time on appeal. This is particularly true where the defect could have been corrected by a new trial had it been timely pointed out. The rule prevents litigants from concealing the real point of their objection while litigating on other grounds, and respects the procedural necessity of giving the lower court the opportunity to rule and cure defects.

• Attestation Clause for an Inventory Integral to the Will — When an inventory of properties is attached to a will and is expressly referred to in the will as an integral part thereof, the attestation clause that covers both the will and the inventory—describing their respective folios and confirming that they were signed by the testatrix and witnesses—dispenses with the need for a separate attestation clause at the end of the inventory. The single clause serves the same authenticating function for both documents.

• Substantial Compliance with the Paging-in-Letters Requirement — The statutory mandate that the pages of a will be numbered “in letters” is satisfied by paging in Arabic numerals or in letters of the alphabet (e.g., A, B, C). The controlling consideration is whether the method of paging, together with the signatures on the margins, sufficiently identifies the correlation of the pages and deters the removal or substitution of sheets. A contrary interpretation that adds technical demands without any corresponding safeguard against fraud is to be avoided, as the law’s object is to prevent bad faith and guarantee authenticity, not to frustrate the testamentary intent with unnecessary formalities.

• Exceptions to the Rule Requiring Production of All Attesting Witnesses — In a contested probate, although the general rule is that all available attesting witnesses must be produced, exceptions exist when a witness is dead, is beyond the reach of the court’s process, is incompetent, or is openly hostile to the proponent. In such cases, the will may be admitted to probate if the court is satisfied upon the other evidence adduced that the will was executed and attested in the manner prescribed by law (Code of Civil Procedure, Section 632).

• “when we believe that substantial justice has been done in the Court 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.” This passage establishes the procedural bar against raising issues for the first time on appeal and explains the rationale of curing defects at the trial level.

• “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 at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same.” This excerpt articulates the functional equivalence between paging in letters and paging in other forms when the signatures on the margins already provide a safeguard against fraud.

• “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.” This statement crystallizes the doctrine that a single attestation clause can cover both a will and an attached inventory when the inventory is incorporated as an integral part of the testament.

• Cabang vs. Delfinado, 34 Phil. 291 — Established the general rule that in a contested probate, all attesting witnesses must be examined if alive and within the court’s jurisdiction. Distinguished on the ground that in that case the proponent had been fully apprised of the issue in the lower court, unlike in the present case where the objection was raised for the first time on appeal.

• Estate of McCarty, 58 Cal. 335 — Followed as persuasive authority from California for the proposition that an objection not presented in the trial court cannot be raised for the first time on appeal.

• Avera vs. Garcia and Rodriguez, 42 Phil. 145 — Cited for the doctrine that an uncontested will may be proved by the testimony of only one attesting witness, and for the observation that the statutory requirement of signing on the left margin is directory as to which margin, so long as the signatures appear on one margin for authentication.

• Aldaba vs. Roque (p. 378, ante) — Applied for the holding that paging with the letters A, B, C suffices to comply with the requirement of paging in letters, as the essential purpose is to show the correlation of the pages.

• Abangan vs. Abangan, 40 Phil. 476 — Relied upon for the principle that the formalities surrounding the execution of wills must be interpreted to achieve their object of preventing fraud, not to impose unnecessary requirements that frustrate the testator’s will; and for the holding that omission of paging does not invariably nullify a will when other authenticating safeguards are present.

• Craig vs. Tatlonghari (G.R. No. 12558, March 23, 1918, not reported) — Distinguished as a case where a will was declared void for a total lack of the required marginal signatures, a defect not present here.

• Re Estate of Saguinsin, 41 Phil. 875 — Distinguished as a case where a will was voided because signatures appeared only on each leaf (folio) rather than on each page containing written matter, again not applicable to the facts at bar.

• Section 1, Act No. 2645 — Prescribes the formal requirements for the execution of a will, including that its pages be numbered in letters, that an attestation clause be written, and that the testator and witnesses sign on the left margin of each page. The provision was applied to uphold the sufficiency of a single attestation clause covering both the will and an integral inventory, and to accept paging in Arabic numerals as a substantial compliance with the paging requirement.

• Section 632, Code of Civil Procedure — Allows a will to be probated even when one or more attesting witnesses do not remember having attested it, provided the court is satisfied upon other evidence that the will was executed in the manner prescribed by law. This provision supported the conclusion that the will could be probated without the testimony of a hostile witness, the court having been satisfied by the remaining competent proof.

Araullo, C.J., Malcolm, Avanceña, Ostrand, Johns, and Romualdez, JJ. concurred.