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Gil vs Murciano

G.R. No. L-3362; March 1, 1951


This is an appeal from an order of the CFI in admitting to probate the alleged will and testament
of the deceased Carlos Gil. The oppositor, Pilar Gil Vda. de Murciano, who appealed to the SC, alleged
that the lower court erred in allowing the probate of the said will on the ground that it was not executed
according to the requirements under Sec.618 of the Code of Civil Procedure. As it was contended that
the attestation clause of the will in question does not state that the testator signed the will. It declares
only that it was signed by the witness. Such was considered a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed the will, this being the most essential element of
the clause. Without it there is no attestation at all.

Whether to allow the probate of the will


No. The decision appealed from is reversed, denying the probate of the alleged will and
declaring intestate the estate of the deceased Carlos Gil. Under Section 618 of Act No. 190, (before it
was amended), contained the following provision: xxx But the absence of such form of attestation shall
not render the will invalid if it proven that the will was in fact signed and attested as in this section
provided. However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides
increasing the contents of the attestation clause, entirely suppressed the above-quoted provision. This
would show that the purpose of the amending act was to surround the execution of a will with greater
guarantees and solemnities.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of the
body of the alleged will. At first glance, it is queer that the alleged testator should have made an
attestation clause, which is the function of the witness. But the important point is that he attests or
certifies his own signature, or, to be accurate, his signature certifies itself. It is evident that one cannot
certify his own signature, for it does not increase the evidence of its authenticity. It would be like lifting
one's self by his own bootstraps. Consequently, the last paragraph of the will cannot cure in any way
the fatal defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does
not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is
true, but said rules apply to the body of the will, containing the testamentary provisions, but not to the
attestation clause, which must be so clear that it should not require any construction.

 The portion of section 618 of the Code of Civil Procedure, as amended, provides that "The
attestation clause shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the presence of the testator and
of each other"
 The attestation clause must be made in strict conformity with the requirements of section 618 of
Act No. 190, as amended. Where said clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient ground for the disallowance of the will.
Evidence aliunde should not be admitted to establish facts not appearing on the attestation
clause, and where said evidence has been admitted it should not be given the effect intended.
 Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to give
effect to the intention of the Legislature. Statutes prescribing formalities to be observed in the
execution of wills are very strictly construed. Courts cannot supply the defensive execution of