EN BANC
G.R. No. L-4067
November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, 1943. 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.
In our opinion, the 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 (who is appealing by
way of certiorari from the decision of the Court of Appeals) 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 the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs.
Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76
Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
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.
Wherefore, the appealed decision is hereby affirmed, with
against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista
Angelo, JJ., concur.
