Bona vs. Briones

A notary who drafts a will at the testator's direction, is present throughout its execution, sees the testator and the other witnesses sign, and signs the instrument himself — even if in the capacity of notary — qualifies as an attesting witness for purposes of the three-witness requirement under Section 618 of Act No. 190, and a defect in form consisting of the failure to expressly designate the notary as a witness does not invalidate the will where the will was in fact signed and attested as the law provides.

Francisco Briones had legitimate children — Hospicio, Gregoria, and Carmen, all surnamed Briones — from a first marriage, and Monica Bona as his widow from a second marriage. Briones died on August 14, 1913, having executed a will on September 16, 1911. The will was drafted by Domingo de la Fuente, a notary public, at the testator's direction, and was attested by Gregorio Bustilla and Sixto Barrameda as instrumental witnesses, with de la Fuente also signing in his capacity as notary. The governing statute at the time of execution was Section 618 of Act No. 190, which required attestation by three or more credible witnesses in the presence of the testator and of each other. Act No. 2645, which amended Section 618, was promulgated on February 24, 1916, and took effect on July 1, 1916 — after both the will's execution and the testator's death.

Francisco Briones, who had legitimate children — Hospicio, Gregoria, and Carmen, all surnamed Briones — from a first marriage, and a widow, Monica Bona, from a second marriage, died on August 14, 1913. During his lifetime, on September 16, 1911, he had executed a will in the municipality of Bao, Ambos Camarines, in the house of Gregorio Bustilla. On that occasion, Briones, knowing that notary Domingo de la Fuente was present in the house, went upstairs and announced himself. When asked what he wanted, Briones stated that he wished to execute his will. After conversing with the notary, Briones left and returned with paper. Thereafter, de la Fuente, under the direction of Briones, drafted the will. When the document was finished, Briones signed it in the presence of the notary, of Bustilla, and of another witness, Sixto Barrameda. The three — Bustilla, de la Fuente, and Barrameda — then signed in the presence of each other and of the testator.

At the trial, Gregorio Bustilla testified under oath that the testator was of sound judgment and was not forced to execute the will. He identified the document marked as Exhibit A as the will of Francisco Briones and identified the testator's signature thereon, as well as those of the other witnesses. By agreement of both parties, it was stipulated that if Sixto Barrameda and Domingo de la Fuente were called to testify, they would have given testimony in the same terms as Bustilla. The will's text certified that it contained the last will of the testator, that no inducement or threat had been made, that Briones — not knowing how to write Spanish — had requested de la Fuente to write the will, and that the testator signed voluntarily in the presence of the witnesses, who also signed on the date expressed. De la Fuente certified as notary to the certainty of the will and the signatures of the testator and the witnesses.

Monica Bona, the widow, petitioned for probate of the will. The legitimate children from the first marriage opposed, alleging that the will was executed before only two witnesses and was procured through unlawful and undue pressure, influence, fraud, and deceit. The trial court, by judgment dated March 27, 1915, denied probate. The appeal followed.

• Sufficiency of Attesting Witnesses: Petitioner maintained that the will was executed in accordance with the solemnities prescribed by Section 618 of Act No. 190, arguing that Domingo de la Fuente, though acting as notary, also served as an attesting witness because he was present throughout the execution, saw the testator sign, saw the other witnesses sign, and signed the instrument himself in their presence.
• Curative Clause of Section 618: Petitioner relied on the last paragraph of Section 618, which provides that the absence of the form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as the section provides.
• Non-retroactivity of Amendatory Law: Petitioner argued that Act No. 2645, which amended Section 618 and took effect on July 1, 1916, could not apply to a will executed in 1911 by a testator who died in 1913, both dates being prior to the amendatory law's effectivity.

• Insufficient Number of Witnesses: Respondents argued that the will was executed before only two witnesses, Bustilla and Barrameda, and that Domingo de la Fuente, who signed as notary, could not be counted as a third attesting witness.
• Undue Influence and Fraud: Respondents alleged that the will was executed under unlawful and undue pressure or influence exercised upon the testator, who signed through fraud and deceit, and prayed that the will be declared null.

• Number of Attesting Witnesses: Whether Domingo de la Fuente, who drafted the will as notary at the testator's direction and signed the instrument in that capacity, may be counted as an attesting witness to satisfy the three-witness requirement of Section 618 of Act No. 190.
• Applicable Law: Whether Act No. 2645, which amended Section 618 of Act No. 190 and took effect on July 1, 1916, may be applied to the probate of a will executed on September 16, 1911, by a testator who died on August 14, 1913.
• Curative Provision: Whether the last paragraph of Section 618 of Act No. 190 — providing that absence of the form of attestation shall not invalidate the will if it is proven that the will was in fact signed and attested as provided — sustains the validity of the will despite the defect in form.

• Number of Attesting Witnesses: Yes. Domingo de la Fuente qualified as an attesting witness because he was present throughout the will's execution, saw the testator and the other witnesses sign, and signed the instrument himself in their presence, even though he signed in the capacity of notary.
• Applicable Law: No. Act No. 2645 cannot apply, the will having been executed in 1911 and the testator having died in 1913, both before the amendatory law took effect on July 1, 1916. The law in force at the time of execution — Section 618 of Act No. 190 — governs.
• Curative Provision: Yes. The last paragraph of Section 618 sustains the will's validity, the defect being merely in form and not in substance, the will having been in fact signed and attested as the section provides.

• Number of Attesting Witnesses: Section 618 of Act No. 190 required attestation by "three or more credible witnesses in the presence of the testator and of each other." Although Domingo de la Fuente signed the will in his capacity as notary, he was present from the first to the last line of the will's drafting and execution. He saw the testator sign, saw the two other witnesses (Bustilla and Barrameda) affix their signatures, and signed the document himself in the presence of the testator and the other witnesses. The law does not require that one of the witnesses must necessarily be a notary; nor does it disqualify a notary from serving as a witness. Because de la Fuente attested the execution and signing of the will not only by the testator but also by the other attesting witnesses, his participation satisfied the statutory requirement of three credible witnesses. The Court emphasized that he understood the contents of the will better than the two other attesting witnesses, having drafted it at the testator's direction.

• Applicable Law: The will was executed on September 16, 1911, and the testator died on August 14, 1913. Act No. 2645, which amended Section 618, was promulgated on February 24, 1916, and took effect only on July 1, 1916. Both the execution and the death preceded the amendatory law's effectivity. The Court applied the principle that a new law shall not have retroactive effect as to rights arising from acts done under the former law. Hereditary rights are not born, nor does a will produce any effect, until the moment of the death of the person whose inheritance is concerned. Since the testator died before Act No. 2645 took effect, the only applicable law was Section 618 of Act No. 190.

• Curative Provision: The last paragraph of Section 618 provides that "the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided." The defect in the will — the failure to expressly state that de la Fuente was also a witness when he signed — was merely formal and not essential. The certification of authenticity and the text of the will clearly showed that it contained the last will of the testator, that it was signed by him, and that it was attested not only by Bustilla and Barrameda but also by de la Fuente, who was a truthful and reliable witness. The Court held that where the testator's wish is manifest and express, it is not proper nor just to invalidate the will merely because of a small defect in form which is not essential nor of great importance.

• Notary as Attesting Witness — A notary public who drafts a will at the testator's direction, is present throughout its execution, witnesses the testator and the other attesting witnesses sign, and signs the instrument himself in their presence, qualifies as an attesting witness for purposes of the statutory three-witness requirement, even if he signs in his capacity as notary. The law does not require that one of the witnesses must necessarily be a notary, nor does it disqualify a notary from acting as a witness. The Court applied this doctrine to hold that the will of Francisco Briones satisfied the three-witness requirement of Section 618 of Act No. 190 through Bustilla, Barrameda, and de la Fuente.

• Curative Clause in Will Formalities (Section 618, Act No. 190) — The absence of the form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as the section provides. This curative provision sustains the validity of a will despite a formal defect — such as the failure to expressly designate a signatory as a witness — where the will was in fact executed and attested in compliance with the statute's substantive requirements. The Court relied on this provision to uphold the will despite the defect that de la Fuente's role as witness was not expressly stated.

• Non-retroactivity of Probate Laws — A new law amending the formalities required for will execution cannot be applied retroactively to a will executed, or to a testator who died, before the new law took effect. Hereditary rights are not born, nor does a will produce any effect, until the moment of the death of the person whose inheritance is concerned. The Court applied this principle to hold that Act No. 2645, which took effect on July 1, 1916, could not govern the probate of a will executed in 1911 by a testator who died in 1913.

• "The law does not require that one of the witnesses must necessarily be a notary, and it cannot be denied that Domingo de la Fuente attested the execution and the signing of the will not only by the testator but also by the attesting witnesses, it cannot but be admitted that Domingo de la Fuente intervened, attested, and signed the testament as a witness." — This passage articulates the ratio decidendi: a notary who participates in and witnesses every stage of a will's execution counts as an attesting witness regardless of the capacity in which he signs.

• "It is not proper nor just to invalidate the will of Francisco Briones merely because of some small defect in form which is not essential nor of great importance, such as the failure to state therein that Domingo de la Fuente was also a witness to the said will when he signed it twice." — This passage establishes the Court's policy of upholding testamentary intent against non-essential formal defects, anchored on the curative clause of Section 618.

• "Hereditary rights are not born nor does the will produce any effect until the moment of the death of the person whose inheritance is concerned." — This passage states the principle governing the retroactivity of probate laws, cited from a decision of the Supreme Court of Spain rendered in cassation on June 24, 1897, and applied to determine that Act No. 2645 could not govern a will whose testator died before its effectivity.

• Decision of the Supreme Court of Spain in cassation, June 24, 1897 — Cited for the proposition that hereditary rights are not born, nor does a will produce any effect, until the moment of the death of the person whose inheritance is concerned. This principle was applied to determine that the amendatory Act No. 2645, which took effect after the testator's death, could not govern the probate proceedings.

• Section 618, Act No. 190 (Code of Civil Procedure) — The governing statute at the time of the will's execution. It required that a will be in writing, signed by the testator or by another person in his presence and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. Its last paragraph provided a curative clause: the absence of the form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as provided. The Court applied this provision to uphold the will's validity.
• Act No. 2645 — The amendatory law that modified Section 618 of Act No. 190, promulgated on February 24, 1916, and taking effect on July 1, 1916. The Court held that this law could not apply retroactively to a will executed in 1911 by a testator who died in 1913.

Johnson, Carson, Street, Malcolm, Avanceña, and Fisher, JJ., concurred.