PRINCIPLE:
To successfully assail the juristic value of what a Torrens title establishes, a sufficient
and convincing quantum of evidence on the defect of the title must be adduced to
overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary
to the appellate courts ruling, the appearance of a mere thumbmark of Don Julian
instead of his signature in the Supplemental Deed would not affect the validity of
petitioners title for this Court has ruled that a thumbmark is a recognized mode of
signature.[51]
G.R. No. L-33365 December 20, 1930
Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,
vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.
Montinola, Montinola and Hilado for appellant.
Lopez Vito and Lopez Vito for appellees.
MALCOLM, J.:
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.lawphi1>net
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.
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.
DIGEST:
Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by Atty.
Florentino Javier as he wrote the name of Antero Mercado and his name for the testatior on the
will. HOWEVER, immediately after Antero Mercados will, Mercado himself placed an X mark.
The attestation clause was signed by three instrumental witnesses. Said attestation clause states
that all pages of the will 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. The
attestation clause however did not indicate that Javier wrote Antero Mercados name.
ISSUE: Whether or not the will is valid.
HELD: No. The attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testators name under his express direction, as required
by Section 618 of the Code of Civil Procedure.
But is there really a need for such to be included in the attestation clause considering that even
though Javier signed for Antero, Antero himself placed his signature by virtue of the X mark, and
by that, Javiers signature is merely a surplusage? That the placing of the X mark is the same as
placing Anteros thumb mark.
No. Its not the same as placing the testators thumb mark. It would have been different had it been
proven that the X mark was Anteros usual signature or was even one of the ways by which he
signs his name. If this were so, failure to state the writing by somebody else would have been
immaterial, since he would be considered to have signed the will himself.
G.R. No. L-30289 March 26, 1929
SERAPIA DE GALA, petitioner-appellant,
vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.
Sumulong, Lavides & Hilado for petitioner-appellant.
Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.
1. PROBATE PROCEEDINGS; SPECIAL ADMINISTRATORS; REMOVAL.
administrator indicates that both his appointment and his removal are purely discretionary, and we
Theappointment of a special administrator in a probate case lies in the sound discretion of
thecourt, and he may be removed without reference to section 653 of the Code of CivilProcedure.
2. WILLS; TESTATORS SIGNATURE; THUMB-MARKS.
In executing her last willand testament, the testatrix placed her thumb-mark between her given
name and surname, written by another person. It was not mentioned in the attestation
clause that the testatrixsigned by thumb-mark, but the form of the signature was sufficiently
described andexplained in the last clause of the body of the will. Held, that the signature was valid.
OSTRAND, J.:
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.
In the meantime and after various continuances and delays, the court below 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.
Serapia's appeal requires but little discussion. The burden of the argument of her counsel is that a
special administrator cannot be removed except for one or more of the causes stated in section
653 of the Code of Civil Procedure. But that section can only apply to executors and regular
administrators, and the office of a special administrator is quite different from that of regular
administrator. The appointment of a special administrator lies entirely in the sound discretion of the
court; the function of such an administrator is only to collect and preserve the property of the
deceased and to return an inventory thereof; he cannot be sued by a creditor and cannot pay any
debts of the deceased. The fact that no appeal can be taken from the appointment of a special
cannot find that the court below abused its discretion in the present case. In removing Serapia de
Gala and appointing the present possessor of the property pending the final determination of the
validity of the will, the court probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue that 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. That section reads as follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be written in the language or dialect known
by the testator and signed by him, 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 each other. 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, on the left margin, and said pages shall
be numbered correlatively in letters placed on the upper part of each sheet. The attestation
shall state the number of sheets or 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 three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and of each
other.
The principal points raised by the appeal are (1) that the person requested to sign the name of the
testatrix signed only the latter's name and not her own; (2) that the attestation clause does not
mention the placing of the thumb-mark of the testatrix in the will; and (3) that the fact that the will
had been signed in the presence of the witnesses was not stated in the attestation clause but only
in the last paragraph of the body of the will.
The first point can best be answered by quoting the language of this court in the case of the Estate
of Maria Salva, G. R. No. 26881:1
 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.
On these facts, the theory of the trial judge was that under the provisions of section 618
of the Code of Civil Procedure, as amended by Act No. 2645, it was essential to 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, it had been held by this court 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. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the trial judge
emphasizes that the amendment introduced into the law the following sentence: '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, on the left margin .
. ..' This requirement, it is said, was not lived up to in this instance.
There is, however, an entirely different view which can be taken of the situation. This is
that the testatrix placed her thumb-mark on the will in the proper places. When, therefore,
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. A
statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's
mark. (28 R. C. L., pp. 116-117).
The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of her name
as written by Serapia de Gala on all of the pages of the will.
The second and third points raised by Sinforoso Ona and Apolinario Gonzales are sufficiently
refuted by quoting the last clause of the body of the will together with the attestation clause, both
of which are written in the Tagalog dialect. These clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang naglalaman ng
aking huling tagubilin, at sa hindi ko kaalamang lumagda ng aking pangalan, ipinamanhik
ko sa aking pamankin na si Serapia de Gala na isulat ang aking pangalan at apellido, at
sa tapat ay inilagda ko ang titik ng kanang daliri kong hinlalaki, sa walkas at sa bawat isa
sa anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at sa harap ko
at ng tatlong saksing nagpapatutuo sa huli ngayon ika dalawang po't tatlo ng Nobiembre
ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na dahon na
pinirmahan sa harap namin ni Serapia de Gala sa kahilingan ni Severina Gonzales sa
wakas at sa mga gilid ng bawa't isa sa anim (6) na dahon at isinaysay na ang kasulatang
ito ay siyang huling habilin o testamento ni Severina Gonzales, ay pinirmahan namin,
bilang mga saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng
tinurang testadora, at ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat isa
sa amin, ngayon ika dalawang po't tatlo ng noviembre ng taong 1920 ng taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as follows:
In virtue of this will, consisting of six pages, that contains my last wish, and because of the fact that I
cannot sign my name, I request my niece Serapia de Gala to write my name, and above this I placed my
right thumb-mark at the end of this will and to each of the six pages of this document, and this was done
at my direction and in the presence of three attesting witnesses, this 23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6) sheets and was signed in our presence by
Serapia de Gala at the request of Severina Gonzales at the end and on the margins of each of the six (6)
sheets and was declared to contain the last will and testament of Severina Gonzales, was signed by us
as witnesses at the end and on the margins of each sheet in the presence and at the request of said
testatrix, and each of us signed in the presence of all and each of us, this 23rd day of November of the
year 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
As will be seen, it is not mentioned in 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.
The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that the will
had been signed in the presence of the witnesses was not stated in the attestation clause is
without merit; the fact is expressly stated in that clause.
In our opinion, the will is valid, and the orders appealed from are hereby affirmed without costs. So
ordered.