Dela Cerna v.

Potot

FACTS: Spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the
local dialect whereby they willed that "our two parcels of land acquired during our marriage together with
all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since
childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two
lands aforementioned". The will was submitted to probate by said Gervasia and Manuela before the Court
of First Instance of Cebu. Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the
probate of the same will insofar as Gervasia was concerned was filed. Court of First Instance ordered the
petition heard and declared the testament null and void, for being executed contrary to the prohibition of
joint wills in the Civil Code Whence this appeal by the heirs intestate of the deceased husband, Bernabe
de la Cerna.

ISSUE: Whether the will executed by Sps. De la Cerna is valid

HELD: With regard to the estate of Bernabe(husband), petitioners are concluded by the 1939 decree
admitting his will to probate . However, the probate decree could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that
prior to the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her
death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator.
Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law
was correct as to the participation of the deceased Gervasia Rebaca in the properties in question.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate,
and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.

In the matter of the probation of the will of Jose Riosa. MARCELINO CASAS, applicant-appellant.

FACTS: Jose Riosa died on April 17, 1917. He left a will made in the month of January, 1908, in which he
disposed of an estate valued at more than P35,000. The will was duly executed in accordance with the law
then in force, namely, section 618 of the Code of Civil Procedure. The will was not executed in accordance
with Act No. 2645, amendatory of said section 618, prescribing certain additional formalities for the signing
and attestation of wills, in force on and after July 1, 1916. In other words, the will was in writing, signed by
the testator, and attested and subscribed by three credible witnesses in the presence of the testator and of
each other; but was not signed by the testator and the witnesses on the left margin of each and every page,
nor did the attestation state these facts. The new law, therefore, went into effect after the making of the will
and before the death of the testator, without the testator having left a will that conforms to the new
requirements.The will was executed prior to the enactment of Act No. 2645 and the death occurred after
the enactment of this law.

ISSUE: whether in the Philippine Islands, law existing on the date of the execution of a will, or the law
existing at the death of the testator, controls.

HELD: [As to formalities] law at the time of execution of the will governs.The will of Jose Riosa is valid.

The rule prevailing in many other jurisdictions is that the validity of the execution of a will must be tested by
the statutes in force at the time of its execution and that statutes subsequently enacted have no
retrospective effect. This doctrine is believed to be supported by the weight of authority. It was the old
English view; in Downs (or Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported to have said
that "the general rule as to testaments is, that the time of the testament, and not the testator's death, is
regarded." It is also the modern view, including among other decisions one of the Supreme Court of
Vermont from which State many of the sections of the Code if Civil Procedure of the Philippine Islands
relating to wills are taken. (Giddings vs. Turgeon [1886], 58 Vt., 103.)

It is a general rule of statutory construction,, as found in the Civil Code, is corroborative; article 3 thereof
provides that "laws shall not have a retroactive effect, unless therein otherwise prescribed." The language
of Act No. 2645 gives no indication of retrospective effect. Such, likewise, has been the uniform tendency
of the Supreme Court of the Philippine Islands on cases having special application to testamentary
succession.

Dacanay v. Florendo

FACTS: This is a special proceeding commenced to probate a joint and reciprocal will executed by the
spouses Isabel Florendo and Tirso Dacanay in 1940. Isabel V. Florendo having died, her surviving spouse
Tirso Dacanay is seeking to probate said joint and reciprocal will, which provides in substance that whoever
of the spouses, joint testators, shall survive the other, shall inherit all the properties of the latter, with an
agreement as to how the surviving spouse shall dispose of the properties in case of his or her demise.

The relatives of the deceased Isabel Fllorendo opposed the probate of said will on the ground that said will
is null and void ab initio as having been executed in violation of article 669 of the Civil Code.

Article 669 of the Civil Code reads as follows: Two or more persons cannot make a will conjointly or in the
same instrument, either for their reciprocal benefit or for the benefit of a third person.

Appellant argues that article 669 of the Civil Code has been repealed by Act. No. 190, which he claims
provides for and regulates the extrinsic formalities of wills, contending that whether two wills should be
executed conjointly or separately is but a matter of extrinsic formality.

ISSUE: Whether the joint will of Spouses Dacanay is valid

HELD: No

The question now raised by appellant has recently been decided by this court adversely to him in In re Will
of Victor Bilbao:

“ x x x The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons
conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is
not unwise and is not against public policy. The reason for this provision, especially as regards husband
and wife, is that when a will is made jointly or in the same instrument, the spouse who is more aggressive,
stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit
or for that of third persons whom he or she desires to favor. And, where the will is not only joint but
reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate,
knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal
and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.

Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at
least not expressly, as well as the consideration that its provisions are not incompatible with those of the
Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is
still in force. x x x”

Garcia v. Lacuesta
FACTS: The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado
was signed by himself and also by us below his name and of this attestation clause and that of the
left margin of the three pages thereof. Page three the continuation of this attestation clause; this
will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence of the testator and all
and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine
hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado,
followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to
have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the
Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was
signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the
express request of the testator in the presence of the testator and each and every one of the witnesses; (2)
to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator
has written a cross at the end of his name and on the left margin of the three pages of which the will consists
and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.

ISSUE: Whether the will may be allowed

HELD: No. Attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the
Code of Civil Procedure. The herein petitioner argues, however, that there is no need for such recital
because the cross written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in numerous cases.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or
even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken
the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have
the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.