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G. R. NO. L-10751 Present: Paras, C. J. Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Feliz, JJ. Promulgated: June 23, 1958 x ------------------------------------------------------------------ x D E C I S I O N REYES, J. B. L., J.: Appeal from an order of the Court of First Instance of Cavite (issued in its Special Proceedings No. 5253 on February 10, 1956) denying probate of the purported will of the late Gabina Raquel. Admittedly the deceased left no ascendants or descendants, and according to the proponents she executed the testamentary document on January 27, 1950, in the City of Cavite, in the presence of Modesta Gonzales, Felipa Samala and Lourdes Samonte, who signed as instrumental witnesses, and of attorney Ricardo Agbunag, who prepared the instrument. The document in question appears to be composed of three 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, - 1 -

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BASILIA SALUD, Oppositor-Appellee.

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accompanied by the written words Gabina Raquel and underneath said name by Lourdes Samonte. In the purported testament, most of the properties of the testatrix (appraised at over P160,000.00) are bequeathed to her niece Aurea Matias, in recompense for the services rendered to me for more than 30 years; some legacies are made to her other nephews and nieces surnamed Salud and Matias; Aurea Matias is appointed executrix without bond. Below the signature Gabina Raquel set at the foot of the will proper, is an attestation clause in the Spanish language (like the will itself) and reading as follows: ATESTIGUAMIENTO Nosotros, Modesta Gonzales, Felipe Zabala y Lourdes Samonte, por la presente certificamos que este Testamento compueto de tres (3) paginas utiles fue otorgado como la ultima voluntad y testament de Gavina Raquel, quien ha suscrito y firmado en su margen izquierdo y al pie del mismo, en presencia de todos y cada uno de nosotros, y tambien nosotros hemos firmado y atestiguado este testamento compuesto de tres (3) paginas cada uno en presencia de otros y en la de la testadora, en su margen izquierdo y al pie del atestiguamiento. (SGD) MODESTA GONZALES (SGD) FELIPE SAMALA

(SGD) LOURDES SAMONTE 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 proponents evidence is to the effect that the deceased instructed attorney Agbunag to draft her will; that it was brought to her in the morning of January 27, 1950; that she had the witnesses summoned and received them in the ante sala of her house; that when the witnesses were seated around a table with her and attorney Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity thereto and thumbmarked the foot of the document and the left margin of each page. Allegedly 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. It is to be noted that witness Modesta Gonzalez, a 64-year old woman did not testify, as she was

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found to be suffering from high blood pressure, and proponents expert evidence was to the effect that her memory was impaired, and unusual excitement might cost her life. The probate having been opposed by Basilia Salud, a niece of Gabina Raquel, the case was set for trial. After hearing, Judge Primitivo Gonzales of the Court of First Instance of Cavite rendered judgment upholding the contentions of the oppositor and denied the documents admission to probate, principally on the following grounds: (1) That the attestation clause did not state that the testatrix and the witnesses signed each and every page of the will; and while the left margins of each page exhibit the words Gabina Raquel by Lourdes Samonte, the attestation does not express that Lourdes was expressly directed to sign for the testatrix; (2) That the proponent did not adequately explain the nonproduction of witness Modesta Gonzalez, contrary to sec. 11, Rule 77 of the Rules of Court; (3) That 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; (4) That fraud and bad faith attended the execution of the will. 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. The trial court refused credence to the evidence for the proponents on the basis of the expert testimony of Captain Jos Fernandez of the Philippine Constabularys Criminal Laboratory, to the effect that (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; (2) 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; and (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. After careful consideration of the testimony on record, we are of the opinion that the facts adverted to by the expert for the contestant do not clearly support the conclusions drawn by him. Thus,

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his assertion that the fingerprints were affixed after writing the name of the testatrix appears to be an inference drawn from the fact that the ink of the writing failed to spread along the ridge lines of the fingerprints. This conclusion obviously 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); and if the stamp impression is allowed to dry thoroughly before the writing is written over it, the ink will not run out as it does on a damp ink line (Osborn, Questioned Documents, 2d Ed., p. 514). To such effect, the only composition of the rubber stamp ink no doubt contributes. Thus, while the spreading out or running out of the writing ink along the stamping ink lines proves that the writing was made later, the absence of spread does not prove that stamping ink lines were made after the writing was done. 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. As to the alleged use of two different pens, expert Fernandez conclusions are backed more by opinion than by facts, besides being contradicted by expert Espinosa, and the proponents other witnesses. The basis for the conclusions of expert Fernandez, who admitted having been engaged on a contingent basis, not being satisfactorily established and his testimony being contradicted by the two witnesses to the will and the expert for the defense, the lower court erred in considering that the preponderance of the evidence lay with contestants (Roxas vs. Roxas, 48 O. G. 2177; cf Galvez vs. Galvez, 26 Phil. 243; Samson vs. Tan Quintin, 44 Phil. 573). 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. x x x

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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) We are aware that the bequest of the greater portion of decedents estate in favor of proponent Aurea Matias is contained in the first page of the contested will, while the only authentic signature of the deceased appeared in the second page; but the appointment of proponent as executrix of the will without bond (con relevacion de fianza) appearing in the very same page (page 2) fully bespeaks the affection of the testatrix for the proponent, who had lived with the deceased, helped and served her for thirty years, and morally confirms the contested bequest. 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. But while Modesta Gonzalez was not placed on the stand, the proponent made no secret of her whereabouts, nor of the reason why she was not asked to testify: the record shows that both Dr. Bellaflor and Dr. Sanchez agreed that Gonzalez was suffering from hypertension, that she was in the danger zone, and might collapse and die as a consequence of a little excitement on her part. The trial court, having expressly made of record that it would not like to assume responsibility for whatever might happen to this woman (t.s.n. p. 301), could not logically hold proponent to account for not risking Modestas death. At any rate, contestants were free to call her as their own witness, had they felt justified in so doing; so that no unfavorable inference can be drawn from the fact that Modesta Gonzalez was not called by the proponent to the witness stand. Finally, 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; and thence, that the attestation clause, transcribed earlier in this opinion, should be held defective because it fails to state that Lourdes Samonte signed for the testator. This Court has repeatedly held that the legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 105; Dolor vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O. G. 2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and that 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 (Payad vs. Tolentino, 62 Phil. 849). 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.

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Appellant relies on the case of Garcia vs. Lacuesta, G. R. L4067, 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. But 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. In the case now before us, 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 (consistency of the ink, overinking, slipping of the finger, etc.) 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; but 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, the judgment appealed from is reversed, and the document Exh. D ordered admitted to probate. Let the records be returned to the court of origin for further proceedings in accordance with this opinion. Costs against appellees. So Ordered. (Sgd.) JOSE B. L. REYES WE CONCUR: (Sgd.) (Sgd.) (Sgd.) (Sgd.) (Sgd.) (Sgd.) (Sgd.) RICARDO PARAS CESAR BENGZON MARCELINO R. MONTEMAYOR ALEX. REYES FELIX BAUTISTA ANGELO ROBERTO CONCEPCION ALFONSO FELIX


Transcribers Notes: This case was transcribed from a copy available in the Reserve Section of the UP College of Law Library. An Unreported Case Determined case searchers will find that the Philippine Reports series has an entry of this case in 104 Phil. 1046, but a reading of that entry will show that the case is one of those unreported in the series. Hence, a search for the case in other sources, such as the Law Library, needs be resorted to. Formal Characteristics of the Original Copy The original copy of the case is typewritten and contained in six pages of long sheets of paper, bound together with other cases in a compilation available in the library archives. The first page is numbered by hand at the bottom, while the succeeding pages are numbered by type at the top. All pages, except the first, are labeled with the locator or G. R. No. on the upper right hand corner. On the other hand, beginning the first page, successive numbers can be seen on the lower right hand corner, which starts from the number 16 and ends with the number 21. The latter numbering may refer to the pagination for the whole bound case compilation. Formal Changes The transcription was done as close as possible to the original text as it was typewritten in the original copy, disregarding the notations made by some readers of the original copy. Slight modifications were made in the process of transcription, such as font face, font size, document size, and page layout. No Substantial Changes On the other hand, no substantial changes from the copy were made. Filled In Word In page 5 of the transcription, the last words of the last paragraph read, the absence of such description... However, in page 5 of the original copy containing the same words, the lower part of the page is slightly torn off, so that the word between absence and such is missing. The most logical word that would fill the blank which will preserve the sense of the statement is of, and hence, the insertion of this word in the transcription. Possible Mistakes or Errors in the Original Copy If slight mistakes or errors were present in the original copy of the case, then most likely, these mistakes or errors are the following: 1. In the quoted Atestiguamiento found in page 2, a. Felipe in the paragraph should be Felipa; b. compueto should be compuesto; 2. The last name Gonzales is usually interchanged with Gonzalez throughout the whole copy; 3. In page 5, in the last paragraph mentioning a list of case citations: a. The Phil. citation for De Gala vs. Ona should be 53 Phil. 104, and not 53 Phil. 105; b. Dolor vs. Diancin should be Dolar vs. Diancin; c. The Phil. citation for Payad vs. Tolentino should be 62 Phil. 848, and not 62 Phil. 849. On the other hand, a possible substantial mistake can be found in page 6, where the first paragraph opens with the word Appellant. A reading of the other parts of the decision (and the judgment of the Court) would reveal that this word should have been Appellee , because the argument following the word is more consistent with the contentions of the appellee in the case. (In fact, a reader of the original copy made a handwritten correction of the word, striking out the letters ant and placing above it the letters ee, so that the word would read Appellee.) The Signature sablan It appears that the word sablan typed at the end of the original copy is the s ignature or marking of the one who prepared the copy.

Henry C. Flordeliza Transcriber