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IN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased, AUREA MATIAS, Petitioner-Appellant,

Vs.
BASILIA SALUD, Oppositor-Appellee.
G. R. NO. L-10751
June 23, 1958
PONENTE: REYES, J. B. L., J.:

THE CASE:
An appeal from an order of CFI Zamboanga for denying the will of Gabina Raquel.
FACTS:

Gabina Raquel, left no ascendants and descendants.

Executed the will on January 27, 1950 in the presence of Modesta Gonzales, Felipa Samala and
Lourdes Samonte ( instrumental witnesses) and Atty Ricardo Agbunag ( notary public)

The will consist of 3 pages.

On the lower half of the second page, preceding the attestation clause, appears the signature
Gabina Raquel which is apparently of admitted authenticity.

Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the proponents to be
a thumbmark affixed by the testatrix.

On the third page, at the end of the attestation clause appear the signatures appearing on the
left margin of each page;

and on the upper part of each pages left margin appears a violet ink smudge similar to the
one previously described,

accompanied by the written words Gabina Raquel and underneath said name by Lourdes
Samonte.

Most of the properties of the testatrix are bequeathed to her niece, Aurea Matias in
recompense for the services rendered to me for more than 30years.

The testamentary capacity of the testatrix Gabina Raquel despite her ninety years of age and
her disease (herpes zoster), is conceded.

It is also undisputed that she mastered Spanish (the language in which the document is drawn)
and that she could sign her name.

THE WILL ( proponents evidence):

the deceased instructed attorney Agbunag to draft her will;

it was brought to her in the morning of January 27, 1950;

she had the witnesses summoned and received them in the ante sala of her house;

when the witnesses were seated around a table with her and attorney Agbunag, the will was
read by the latter;

Gabina Raquel manifested conformity thereto and thumbmarked the foot of the document and
the left margin of each page.

upon Agbunags insistence, she attempted to sign with his fountain pen, but was only able to
affix the signature at the end of the testamentary dispositions (in the lower half of page two)
because immediately after, she dropped the pen, grasping her right shoulder and complaining
of pain.

After 20 minutes, attorney Agbunag, seeing that Gabina Raquel could not proceed, instructed
Lourdes Samonte to write Gabina Raquel by Lourdes Samonte next to each thumbmark, and
thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta Gonzalez signed, in that
order, at the foot of the attestation clause and at the left margin of each page.

** The probate was opposed by Basilia Salud (niece of Gabina).

CFI Cavite : judge Primitivo Gonzales DENIED the probate on the following grounds:

1. the attestation does not express that Lourdes was expressly directed to sign for the testatrix;

2. the alleged signing and thumbmarking by the deceased was not done in the presence of the
witnesses, nor did the latter sign in the presence of Gabina Raquel;

3. fraud and bad faith attended the execution of the will.


NOTE: From the adverse decision of the trial court, the proponent appealed directly to this Court,
because the value of the properties involved in the litigation exceeded P50,000.00.
Conclusions of Hand writing expert:
(1) the fingerprints appearing at the end and left margins of the will were impressed over the name of
the testatrix, and after the name was written, contrary to what the proponents witnesses asserted;

that the words Gabina Raquel by Lourdes Samonte on the upper left hand margin of page two of the
will were falsified and appear to have been written over a previous tracing;

(3) that the person who wrote Gabina Raquel by Lourdes Samonte is different from the one who
wrote Lourdes Samonte as signature of an attesting witness;

(4) that the signature Lourdes Samonte on the left margin of page 3 of the testament was written
only after that of Felipa Samala when the testimony for the proponent was that they were written in
the reverse order;

(5) that the pen used in signing Gabina Raquel at the foot of the will had separated nibs, while the
other signatures in the document were written with a round point pen, again contrary to the contention
for the proponent that only one pen was used.

COURTS judgment:

1. The facts adverted to by the expert for the contestant do not clearly support the conclusions drawn
by him
> failed to take into account the fact that the evidence is that some 10 or 20 minutes elapsed between
the affixing of the fingerprints and the writing of the marginal signatures, due to the fact that they
were not written until after a long wait for the testatrixs attack of pain to subside.

> There was sufficient time for the fingerprint (which was made in rubber stamp ink) to dry, and
recognized authorities on the matter point out that ink lines over rubber stamps will spread out if the
stamp is not dry (Soderman OConnel, Modern Criminal Investigation, 2d Ed., p. 453);
As to the alleged forgery of Samontes signature in page 3, the lighter shade of the underlying
characters strongly indicates that the overwriting was made to correct ink failure or other imperfection
in the first writing.
The experts opinion is also discredited by the fact that Samonte being available to the proponent
(since she testified in favor of the will), there would be no sense in forging Samontes signature, when
an authentic one was at proponents disposal all the time.
And assuming it to be true that in page 3 of the will Exh. D, Samonte signed after Samala, while in
the other pages she had signed ahead, such occasional departure from the order usually followed does
not signify that the execution of the testament was in any way abnormal or fraudulent.

We do not venture to impute bias to the experts introduced during the trial, but we hasten to state
that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions
which cannot be mathematically precise but which on the contrary, are subject to inherent infirmities.

Speculations on these matters should give way to the positive declarations of the attesting witnesses.
The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses
when it provides that if the will is contested, all the subscribing witnesses present in the Philippines
and not insane, must be produced and examined, and the death, absence, or insanity or any of them

must be satisfactorily shown to the court. (Section 11, Rule 77, Rules of Court.) (Roxas vs. Roxas,
supra)

The court below likewise held against the proponent the fact that the subscribing witness Modesta
Gonzalez was not a witness; claiming that such failure was a violation of sec. 11, Rule 77 of the Rules
of Court.
The contestant urges that the fingermark of the testatrix can not be regarded as her valid signature
since it does not show distinct identifying ridge lines;
the attestation clause, transcribed earlier in this opinion, should be held defective because it fails to
state that Lourdes Samonte signed for the testator.
HELD :
The legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other
mark affixed by him.

where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that
another person wrote the testators name at his request.

While in some of these cases the signing by mark was described in the will or in the attestation
clause, it does not appear that the Court ever held that the absence of such description is a fatal
defect.

Appellant relies on the case of Garcia vs. Lacuesta, G. R. L- 4067, Nov. 29, 1951, wherein this Court
denied probate holding that a will signed with a cross written after the testators name is not a
sufficient signature.

in that case no showing was made that the cross mark was the testators habitual signature nor was
any explanation given why he should use a cross when he knew how to sign.

it was shown that the herpes zoster that afflicted the right arm and shoulder of testatrix made writing
a difficult and painful act, to the extent that, after writing one signature on the second page, she
dropped the pen because of an attack of pain that lasted many minutes and evidently discourage
attempts to sign.

As to the clarity of the ridge impressions:


it is so dependent on aleatory circumstances as to require a dexterity that can be expected of very
few persons; and we do not believe testators should be required to possess the skill of trained officers.

It is to be conceded that where a testator employs an unfamiliar way of signing, and both the
attestation clause and the will are silent on the matter, such silence is a factor to be considered
against the authenticity of the testament;
The failure to describe the unusual signature by itself alone is not sufficient to refuse probate when
the evidence for the proponent fully satisfies the court (as it does satisfy us in this case) that the will
was executed and witnessed as required by law.
WHEREFORE: Judgment of CFI is reversed.