CALO, Michael John T.

Solar v Diancin 55 Phils 479

FACTS:

The will of the deceased Paulino Diancin was denied probate in the Court of
First Instance of Iloilo on the sole ground that the thumbmarks appearing
thereon were not the thumbmarks of the testator. Disregarding the other errors
assigned by the proponent of the will, we would direct attention to the third
error which challenges squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at

Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of
the will and on the left hand margin of each of its pages in the following
manner: "Paulino Diancin, Su Signo, Por Pedro Diamante."

The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo,
and Juan Dominado. The will is detailed in nature, and disposes of an estate
amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an

admittedly genuine thumbmark of Paulino Diancin, was presented. Photographs
of the thumbmarks on the will and of the thumbmark on Exhibit 8 were also
offered in evidence.

One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter gave

as his opinion that the thumbmarks had not been made by the same person.
One, Jose G. Villanueva, likewise attempted to qualify as were authentic.

The petition of the proponent of the will to permit the will to be sent to Manila to
be examined by an expert was denied. On one fact only were the opposing
witnesses agreed, and this was that the ink used to make the thumbmarks on
the will was of the ordinary type which blurred the characteristics of the marks,
whereas the thumbmark on Exhibit 8 was formed clearly by the use of the
special ink required for this purpose.

The trial judge expressed his personal view as being that great differences
existed between the questioned marks and the genuine mar.

ISSUE: WON a thumbmark affixed in a will is recognized as mode of signature?

HELD:

The requirement of the statute that the will shall be "signed" is satisfied not only
the customary written signature but also by the testator's or testatrix' thumbmark.

Expert testimony as to the identity of thumbmarks or fingerprints is of course

admissible. The method of identification of fingerprints is a science requiring
close study.

Where thumb impressions are blurred and many of the characteristic marks far
from clear, thus rendering it difficult to trace the features enumerated by experts
as showing the identity or lack of identity of the impressions, the court is justified
in refusing to accept the opinions of alleged experts and in substituting its own
opinion that a distinct similarity in some respects between the admittedly
genuine thumbmark and the questioned thumbmarks, is evident .This we do
here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3
Chamberlayne on the Modern Law of Evidence, sec. 2561, notes 3.)

There is another means of approach to the question and an obvious one. The
three instrumental witnesses united in testifying concerning the circumstances
surrounding the execution of the will. It was stated that in addition to the testator
and themselves, on other person, Diosdado Dominado, was present.

This latter individual was called as a witness by the oppositors to the will to
identify Exhibit 8. He was later placed on the witness stand by the proponent on
rebuttal, and thereupon declared positively that he was the one who prepared
the will for the signature of Paulino Diancin; that the thumbmarks appearing on
the will were those of Paulino Diancin, and that he saw Paulino Diancin make
these impressions. The testimony of a witness called by both parties is worthy of
credit.
We reach the very definite conclusion that the document presented for probate
as the last will of the deceased Paulino Diancin was, in truth, his will, and that the
thumbmarks appearing thereon were the thumbmarks of the testator.

Accordingly, error is found, which means that the judgment appealed from must
be, as it is hereby, reversed, and the will ordered admitted to probate, without
special finding as to costs in this instance.
 SERAPIA DE GALA, petitioner-appellant,
v.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.

FACTS:

On November 23, 1920, Severina Gonzales executed a will in which Serapia de

Gala, a niece of Severina, was designated executrix. The testatrix died in
November, 1926, leaving no heirs by force of law, and on December 2, 1926,
Serapia, through her counsel, presented the will for probate. Apolinario
Gonzales, a nephew of the deceased, filed an opposition to the will on the
ground that it had not been executed in conformity with the provisions of
section 618 of the Code of Civil Procedure. On April 2, 1927,Serapia de Gala was
appointed special administratrix of the estate of the deceased. She returned an
inventory of the estate on March 31, 1927, and made several demands upon
Sinforoso Ona, the surviving husband of the deceased, for the delivery to her of
the property inventoried and of which he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to
deliver to Serapia de Gala all the property left by the deceased. Instead of
delivering the property as ordered, Sinforoso filed a motion asking the
appointment of Serapia de Gala as special administratrix be cancelled and that
he, Sinforoso, be appointed in her stead.

The motion was opposed by both Apolinario Gonzales and by Serapia de Gala,
but on March 3, 1928, it was nevertheless granted, Serapia was removed, and
Sinforoso was appointed special administrator in her place, principally on the
ground that he had possession of the property in question and that his
appointment would simplify the proceedings.

The lower court in an order dated January 20, 1928, declared the will valid and
admitted it to probate. All of the parties appealed, Serapia de Gala from the
order removing her from the office of special administratrix, and Apolinario
Gonzales and Sinforoso Ona from the order probating the will.

ISSUE:
Whether or not the will in question was not executed in the form prescribed by
section 618 of the Code of Civil Procedure as amended by Act No. 2645
RULING:

The Supreme Court ruled in the negative.

An examination of the will in question disclosed that it contains five pages. The
name of the old woman, Maria Salva, was written on the left hand margin of the
first four pages and at the end of the will. About in the center of her name she
placed her thumb-mark.

About in the center of her name she placed her thumb-mark. The three
witnesses likewise signed on the left-hand margin and at the end of the will.

The provisions of section 618 of the Code of Civil Procedure, as amended by Act
No. 2645, it is essential for the validity of the will that the person writing the name
of the maker of the will also sign. Under the law prior to the amendment that
where a testator is unable to write and his name is signed by another at his
request, in his presence and in that of the subscribing witnesses thereto, it is
unimportant, so far as the validity of the will is concerned, whether the person
who writes the name of the testator signs his own or not.

The Supreme Court held that a will to be signed is satisfied if the signature is
made by the testator's mark. The testatrix placed her thumb-mark on the will in
the proper places. The law says that the will shall be 'signed' by the testator or
testatrix, the law is fulfilled not only by the customary written signature but by the
testator or testatrix' thumb-mark. The construction put upon the word 'signed' by
most courts is the original meaning of a signum or sign, rather than the derivative
meaning of a sign manual or handwriting.

Moreover, the attestation clause that the testatrix signed by thumb-mark, but it
does there appear that the signature was affixed in the presence of the
witnesses, and the form of the signature is sufficiently described and explained in
the last clause of the body of the will. It maybe conceded that the attestation
clause is not artistically drawn and that, standing alone, it does not quite meet
the requirements of the statute, but taken in connection with the last clause of
the body of the will, it is fairly clear and sufficiently carries out the legislative
intent; it leaves no possible doubt as to the authenticity of the document.
 Garcia v. Lacuesta
G.R. L-4067 November 29, 1951
Ponente: Paras, C.J.

Facts:

The CA disallowed the probate of the will of Antero Mercado dated Jan 1943.
The said will was written in Ilocano dialect.

The will appears to have been signed by Atty. Florentino Javier who wrote the
name of the testator followed below by 'A ruego del testador' and the name of
Florentino Javier. In effect, it was signed by another although under the express
direction of the testator. This fact however was not recited in the attestation
clause. Mercado also affixed a cross on the will.

The lower court admitted the will to probate but this order was reversed by the
Court of Appeals on the ground that the attestation failed to recite the facts
surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD:

NO. The attestation is fatally defective for its failure to state that Antero or the
testator caused Atty. Javier to write the former's name under his express
direction as required by Sec. 618 of the Civil Procedure. Finally, on the cross
affixed on the will by the testator, the Court held that it is not prepared to liken
the mere sign of a cross to a thumbmark for obvious reasons- the cross does not
have the trustworthiness of a thumbmark so it is not considered as a valid
signature.
 Barut v. Cabacungan
21 P 461
FACTS:
Barut applied for the probate of the will of deceased, Maria Salomon. The
testatrix stated in the will that being unable to read or write, the will was read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed
Severo Agayan to sign her name to it as testatrix. The probate was contested by
a number of the relatives of the deceased on various grounds.
The probate court found that the will was not entitled to probate because “the
handwriting of the person who it is alleged signed the name of the testatrix to
the will for and on her behalf looked more like the handwriting of one of the
other witnesses to the will than to the person whose handwriting it was alleged
to be” (i.e. The probate court denied probate because the signature seemed to
not have been by Severo Agayan but by another witness).
ISSUE:
Was the dissimilarity in handwriting sufficient to deny probate of the will?
HELD:
No. The SC found that the mere dissimilarity in writing is sufficient to overcome
the uncontradicted testimony of all the witnesses that the signature of the
testatrix was written by Severo Agayan. It is also immaterial who writes the name
of the testatrix provided it is written at her request and in her presence and in
the presence of all the witnesses to the execution of the will.
Based on Section 618 of the Code of Civil Procedure, it is clear that with respect
to the validity of the will, it is unimportant whether the person who writes the
name of the testatrix signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her express direction in the
presence of 3 witnesses and that they attested and subscribed it in her presence
and in the presence of each other. It may be wise that the one who signs the
testator’s name signs also his own; but that is not essential to the validity of the
will.
The court also held that the 3 cases cited by the lower court was not applicable.
In those cases, the person who signed the will for the testator wrote his own
name instead of the testator’s, so that the testator’s name nowhere appeared
in the will, and were thus wills not duly executed.
 Nera v. Rimando
G.R. No. L-5971
February 27, 1911

FACTS:

The only question raised by the evidence in this case as to the due execution of
the instrument propounded as a will in the court below, is whether one of the
subscribing witnesses was present in the small room where it was executed at
the time when the testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or ten feet away,
in a large room connecting with the smaller room by a doorway, across which
was hung a curtain which made it impossible for one in the outside room to see
the testator and the other subscribing witnesses in the act of attaching their
signatures to the instrument.

ISSUE:

What is the true test of the testator’s or the witness’ presence in the signing of a
will?

HELD:
The Supreme Court emphasized that the true test of presence of the testator
and the witnesses in the execution of a will is not whether they actually saw
each other sign, but whether they might have seen each other sign, had they
chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature.

The position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign
if they choose to do so.

The Supreme Court, in this case, determined that all the parties were in the same
small room when each other signed. Hence, they were in each other’s presence
(though the facts of the case didn’t elaborate – the SC just ruled so). The SC
ruled that if some of the witnesses were really in the outer room (a fact which
was not established according to the SC) separated by a curtain, then the will is
invalid, the attaching of those signatures under circumstances not being done
“in the presence” of the witness in the outer room.

*Citing Jaboneta v. Gustilo, the court held that “The true test of presence of the
testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have been seen each other sign,
had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each
signature.”

But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so.

The question is whether the testator and the subscribing witnesses to an alleged
will signed the instrument in the presence of each other does not depend upon
proof of the fact that their eyes were actually cast upon the paper at the
moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by
merely casting the eyes in the proper direction they could have seen each
other sign. To extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
 German Jaboneta vs. Ricardo Gustilo, et al.
G.R. No. 1641
Justice Carson

DOCTRINE

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator’s name written by some other
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 one another.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of 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 the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.

ISSUE

Whether or notthe subscribing witnesses, in compliance with Art. 805 of the New
Civil Code, must actually witness the signing of the instrument by the other
witnesses.

HELD

The fact that Isabelo Jena (one of the witnesses) was still in the room when he
saw Julio Javellana (another of the witnesses) moving his hand and pen in the
act of affixing his signature to the will, taken together with the testimony of the
remaining witnesses which shows that Julio Javellana did in fact there and then
sign his name to the will, convinces the SC that the signature was affixed in the
presence of Isabelo Jena. The purpose of a statutory requirement that the
witness sign in the presence of the testator is said to be that the testator may
have ocular evidence of the identity of the instrument subscribed by the witness
and himself, and the generally accepted tests of presence are vision and
mental apprehension. The true test of vision is not whether the testator actually
saw the witness sign, but whether he might have seen him sign, considering his
mental and physical condition and position at the time of the subscription. These
principles are equally applicable in determining whether the witnesses signed
the instrument in the presence of each other, as required by the statute.
Applying these to the facts of the case, SC is in the opinion that the statutory
requisites as to the execution of the instrument were complied with.