G.R. No.
L-33365 December 20, 1930 The requirement of the statute that the will shall be "signed" is satisfied not only the
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
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.
1
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.
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 administrator indicates that both his appointment and his removal are purely
discretionary, and we 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.
2
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
3
 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.
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
4
testator by Atty. Javier at the former's request said testator has written a cross at the G.R. No. L-6285 February 15, 1912
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 PEDRO BARUT, petitioner-appellant,
thereon in the presence of the testator and of each other. vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
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 A. M. Jimenez for appellant.
direction, as required by section 618 of the Code of Civil Procedure. The herein Ramon Querubin for appellees.
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 MORELAND, J.:
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
This case is closely connected with the case of Faustino Cabacungan vs. Pedro
signature as a thumbmark, the latter having been held sufficient by this Court in the
Barut and another, No. 6284,1 just decided by this court, wherein there was an
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
application for the probate of an alleged last will and testament of the same person the
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
probate of whose will is involved in this suit.
Lopez vs. Liboro, 81 Phil., 429.
This appeal arises out of an application on the part of Pedro Barut to probate the last
It is not here pretended that the cross appearing on the will is the usual signature of
will and testament of Maria Salomon, deceased. It is alleged in the petition of the
Antero Mercado or even one of the ways by which he signed his name. After mature
probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of
reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and
Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo
the reason is obvious. The cross cannot and does not have the trustworthiness of a
Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have
thumbmark.
been witnesses to the execution thereof. By the terms of said will Pedro Barut received
the larger part of decedent's property.
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
The original will appears on page 3 of the record and is in the Ilocano dialect. Its
presence of the witnesses, and by the latter in the presence of the testator and of each
translation into Spanish appears at page 11. After disposing of her property the
other.
testatrix revoked all former wills by her made. She also stated in said will that being
unable to read or write, the same had been read to her by Ciriaco Concepcion and
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as
ordered. testatrix.

The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284
already referred to. Proceeding for the probate of this later will were pending at the
time. The evidence of the proponents and of the opponents was taken by the court in
both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that 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
5
handwriting of one of the other witnesses to the will than that of the person whose
handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the uncontradicted testimony of
all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the witnesses to
the will. It is 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.
The court seems , by inference at least, to have had in mind that under the law relating
to the execution of a will it is necessary that the person who signs the name of the
testatrix must afterwards sign his own name; and that, in view of the fact that, in the
case at bar, the name signed below that of the testatrix as the person who signed her
name, being, from its appearance, not the same handwriting as that constituting the
name of the testatrix, the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do not believe that this
contention can be sustained. Section 618 of the Code of Civil Procedure 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 effect the same, unless it be in writing
and signed by the testator, or by the testator's name written by some other
person in his presence, and by his expenses direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of each. . . .
This is the important part of the section under the terms of which the court holds that
the person who signs the name of the testator for him must also sign his own name
The remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it
to be signed by some other person, at his express direction, in the presence of
three witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation shall
not render the will invalid if it is proven that the will was in fact signed and
attested as in this section provided.
From these provisions it is entirely 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 three witnesses and that they
attested and subscribed it in her presence and in the presence of each other. That is
all the statute requires. It may be wise as a practical matter that the one who signs the
testator's name signs also his own; but that it is not essential to the validity of the will.
Whether one parson or another signed the name of the testatrix in this case is
absolutely unimportant so far as the validity of her will is concerned. The plain wording
of the statute shows that the requirement laid down by the trial court, if it did lay down,
is absolutely unnecessary under the law; and the reasons underlying the provisions of
the statute relating to the execution of wills do not in any sense require such a
provision. From the standpoint of language it is an impossibility to draw from the words
of the law the inference that the persons who signs the name of the testator must sign
his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person
who is unable to write may be signed by another by express direction to any instrument
known to the law. There is no necessity whatever, so far as the validity of the
instrument is concerned, for the person who writes the name of the principal in the
document to sign his own name also. As a matter of policy it may be wise that he do so
inasmuch as it would give such intimation as would enable a person proving the
document to demonstrate more readily the execution by the principal. But as a matter
of essential validity of the document, it is unnecessary. The main thing to be
established in the execution of the will is the signature of the testator. If that signature
is proved, whether it be written by himself or by another at his request, it is none the
less valid, and the fact of such signature can be proved as perfectly and as completely
when the person signing for the principal omits to sign his own name as it can when he
actually signs. To hold a will invalid for the lack of the signature of the person signing
the name of the principal is, in the particular case, a complete abrogation of the law of
wills, as it rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine
which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not
one of these cases is in point. The headnote in the case last above stated gives an
indication of what all of cases are and the question involved in each one of them. It
says:
The testatrix was not able to sign it for her. Instead of writing her name he
wrote his own upon the will. Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will for the testator wrote his own name to the will
instead of writing that of the testator, so that the testator's name nowhere appeared
6
attached to the will as the one who executed it. The case of Ex parte Arcenas contains
the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: "John Doe, by the testator,
Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this
must be written by the witness signing at the request of the testator.
The only question for decision in that case, as we have before stated, was presented
by the fact that the person who was authorized to sign the name of the testator to the
will actually failed to sign such name but instead signed his own thereto. The decision
in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case
have set forth no reason whatever why the will involved in the present litigation should
not be probated. The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of
which we have already spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby reversed and that court is
directed to enter an order in the usual form probating the will involved in this litigation
and to proceed with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure
does not expressly require that, when the testator or testatrix is unable or does not
know how to sign, the person who, in the presence and under the express direction of
either of them, writes in the name of the said testator or testatrix must also sign his own
name thereto, it being sufficient for the validity of the will that the said person so
requested to sign the testator or testatrix write the name of either in his own
handwriting.
Since this court began to decide cases with regard to the form, conditions and validity
of wills executed in accordance with the provisions of the Code of Civil Procedure,
never has the specific point just above mentioned been brought into question. Now for
the first time is affirmed in the majority opinion, written by the learned and distinguished
Hon. Justice Moreland, that, not being required by the said code, the signature of the
name of the person who, at the request of the testator or testatrix, writes the name of
either of the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in
which, as will be seen further on, upon applying the said section 618 of Code of Civil
Procedure and requiring its observance in cases where the testator or testatrix is
unable or does not know how to sign his or her name, expressly prescribed the
practical method of complying with the provisions of the law on the subject. Among
these decisions several were written by various justices of this court, some of whom
are no longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning
the probate of a will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator but by some
other person in his presence and by his direction, such other person should
affix the name of the testator thereto, and it is not sufficient that he sign his own
name for and instead of the name of the testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the
probate of a will, states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil
Procedure; consequently where a testator is unable to sign his name, the
person signing at his request must write at the bottom of the will the full name
of the testator in the latter's presence, and by his express direction, and then
sign his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the
following statements appear:
Wills; inability to sign; signature by another. The testatrix was not able to
sign her name to the will, and she requested another person to sign it for
her. Held, That the will was not duly executed. (Following Ex parte Arcenas et
al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24,
1905; Ex parte Santiago, No. 2002, August 18, 1905.)
7
The following syllabus precedes decision No. 3907:4
Execution of wills. Where it appears in a will that the testator has stated that
by reason of his inability to sign his name he requested one of the three
witnesses present to do so, and that as a matter of fact, the said witness wrote
the name and surname of the testator who, stating that the instrument
executed by him contained his last will, put the sign of the cross between his
said name and surname, all of which details are set forth in a note which the
witnesses forthwith subscribed in the presence of the testator and of each
other, said will may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for
the execution and validity of a will have been complied with, the fact that the
witness who was requested to sign the name of the testator, omitted to state
the words 'by request of .......... the testator,' when writing with his own hand the
name and surname of the said testator, and the fact that said witness
subscribed his name together with the other witnesses and not below the name
of the testator, does not constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the
will of Maria Siason:5
The recital of the name of the testator as written below the will at his request
serves as a signature by a third person.
Moreover among the grounds given as a basis for this same decision, the following
appears:
In sustaining this form of signature, this court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out
the correct formula for a signature which ought to be followed, but did not mean
to exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will with her own hand and requested
another person to sign for her in her presence. This the latter did, first writing
the name of the testatrix and signing his own name below: Held, That the
signature of the testatrix so affixed is sufficient and a will thus executed is
admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:
The legality of a will is not affected by the insertion, supposed to have been made
subsequently, of another name before that of the testator when such name may be
treated as nonexistent without affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as
inserted subsequently, which we neither affirm nor deny, because a specific
determination either way is unnecessary, in our opinion the signature for the
testatrix placed outside of the body of the will contains the name of the testatrix
as if she signed the will, and also the signature of the witness who, at her
request, wrote the name of the testatrix and signed for her, affirming the truth of
this fact, attested by the other witnesses then present. And this fully complies
with the provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the
person who, at the request of the testator or testatrix, signed the latter's or the former's
name and surname to the will must affix his own signature; but it no less true that, in
prescribing the method in which the provisions of the said section 618 to be complied
with, it was stated that, in order that a will so executed might be admitted to probate, it
was an indispensable requisite that the person requested to sign in place of the
testator or testatrix, should write the latter's or the former's name and surname at the
foot of the will in the presence and under the direction of either, as the case might be,
and should afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or
testatrix at the foot of the will should likewise affix his own signature thereto, name and
surname, though it be considered to be neither a rule nor a requisite necessary to
follow for the admission of the will to probate, yet it is unquestionable that, in inserting
this last above-mentioned detail in the aforesaid decisions, it was deemed to be a
complement and integral part of the required conditions for the fulfillment of the
provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of
the person requested to affix to the will the name of the testator or testatrix who is not
able to sign; but by stating in the decisions hereinabove quoted that the name and
surname of the said person should be affixed by him, no act prohibited by law was
recommended or suggested, nor may such a detail be understood to be contrary or
opposed to the plain provisions thereof.
8
In the preceding decision itself, it is recognized to be convenient and even prudent to
require that the person requested to write the name of the testator or testatrix in the will
also sign the instrument with his own name and surname. This statement induces us to
believe that, in behalf of the inhabitants of this country and for sake of an upright
administration of justice, it should be maintained that such a signature must appear in
the will, since no harm could accrue to anyone thereby and, on the contrary, it would
serve as a guarantee of the certainty of the act performed and also might eliminate
some possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete
repeal of article 695 of the Civil Code and, while he conceded that, in the examination
and qualification of a will for the purpose of its probate, one has but to abide by the
provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in
the matter, yet, perhaps imbued with the strongly impelled by a traditional conception
of the laws which he has known since youth, relative to the form of execution of
testaments, he believed it to be a vary natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write in the will
the name and surname of the testator or testatrix should form a part of the provisions
of the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of
the person before referred to a requisite deemed to be convenient and prudent in
the majority opinion formed a part of the provisions of the law, since the latter
contains nothing that prohibits it. The aforementioned different decisions were drawn
up in the form in which they appear, and signed without dissent by all the justices of
the court on various dates. None of them hesitated to sign the decisions,
notwithstanding that it was expressly held therein that the person above mentioned
should, besides writing in the will the name and surname of the testator or testatrix,
also sign the said instrument with his own name and surname.
Without being understood to criticize the provision contained in the said section 618 of
the Code of Civil Procedure it will not be superfluous to mention that the system
adopted in this section is the same as was in vogue under the former laws that
governed in these Islands, with respect to witnesses who were not able or did not know
how to sign their testimony given in criminal or civil cases, in which event any person at
all might write the name and surname of the witness who was unable or did not know
how to sign, at the foot of his deposition, where a cross was then drawn, and, this
done, it was considered that the instrument had been signed by the witness, though it
is true that all these formalities were performed before the judge and the clerk or
secretary of the court, which thereupon certified that such procedure was had in
accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil
Procedure, the person who writes the name and surname of the testator or testatrix
does so by the order and express direction of the one or of the other, and this fact must
be recorded in the will; but in the matter of the signature of a deposition, the witness,
who could not or did not know how to sign, did not need to designate anyone to write
the deponent's name and surname, and in practice the witness merely made a cross
beside his name and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous
statutes, among them those of the Civil Code, the person or witness requested by the
testator or testatrix who was not able or did not know how to sign, authenticated the
will by signing it with his own name and surname, preceded by the words "at the
request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code
contains the following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign,
one of the attesting witnesses or another person shall do so for him at his
request, the notary certifying thereto. This shall be done if any one of the
witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure
prescribed by the old laws with respect to the signing of a will by a testator or testatrix
who did not know how or who could not sign, consisted in that the person appointed
and requested by the testator or testatrix to sign in his or her stead, such fact being
recorded in the will, merely affixed at the bottom of the will and after the words "at the
request of the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by
these legal provisions, which it may said, are traditional to them in the ideas they have
formed of the existing laws in the matter of procedure in compliance therewith as
regards the execution and signing of a will, should have believed that, after the name
and surname of the testator or testatrix had been written at the foot of the will, the
person who signed the instrument in the manner mentioned should likewise sign the
same with his own name and surname.
If in various decisions it has been indicated that the person who, under the express
direction of the testator or testatrix, wrote the latter's or the former's name and
surname, should also sign the will with his own name and surname, and since this
suggestion is not opposed or contrary to the law, the undersigned is of opinion that it
ought not to be modified or amended, but that, on the contrary, it should be maintained
as a requisite established by the jurisprudence of this court, inasmuch as such a
9
requisite is not contrary to law, to public order, or to good custom, is in consonance
with a tradition of this country, does not prejudice the testator nor those interested in an
inheritance, and, on the contrary, constitutes another guarantee of the truth and
authenticity of the letters with which the name and surname of the testator of testatrix
are written, in accordance with his or her desire as expressed in the will.
Even though the requisites referred to were not recognized in jurisprudence and were
unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical
usages and customs observed in this country, it ought, in the humble opinion of the
writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake
of a good administration of justice, because it is not a question of a dangerous
innovation or of one prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the jurisprudence of the courts and
which in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises,
but in the opinion of the undersigned, are conducive to the realization of the purposes
of justice, have impelled him to believe that the proposition should be enforced that the
witness requested or invited by the testator or testatrix to write his or her name to the
will, should also subscribed the instrument by signing thereto his own name and
surname; and therefore, with the proper finding in this sense, and reversal of the
judgment appealed from, that the court below should be ordered to proceed with the
probate of the will of the decedent, Maria Salomon, in accordance with the law.
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
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.
A majority of the members of the court is of opinion that this subscribing witness was in
the small room with the testator and the other subscribing witnesses at the time when
they attached their signatures to the instrument, and this finding, of course, disposes of
the appeal and necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question
of fact of vital importance in the determination of this case, as he was of opinion that
under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the
alleged fact that one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in the inner room,
had it been proven, would not be sufficient in itself to invalidate the execution of the
will. But we are unanimously of opinion that had this subscribing witness been proven
to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have
been invalid as a will, the attaching of those signatures under circumstances not being
done "in the presence" of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing witnesses would necessarily
have been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we 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. This, of course, does not mean that the
testator and the subscribing witnesses may be held to have executed the instrument in
the presence of each other if it appears that they would not have been able to see
each other sign at that moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge discloses that "at the
10
moment when the witness Javellana signed the document he was actually and A. 1641 I signed it first, and afterwards Aniceto and the others.
physically present and in such position with relation to Jaboneta that he could see
everything that took place by merely casting his eyes in the proper direction Q. 1641 Who were those others to whom you have just referred?
and without any physical obstruction to prevent his doing so." And the decision merely
laid down the doctrine that the question whether the testator and the subscribing A. 1641 After the witness Aniceto signed the will I left the house,
witnesses to an alleged will sign the instrument in the presence of each other does not because I was in a hurry, and at the moment when I was leaving I saw Julio
depend upon proof of the fact that their eyes were actually cast upon the paper at the Javellana with the pen in his hand in position ready to sign (en actitud de
moment of its subscription by each of them, but that at that moment existing conditions firmar). I believe he signed, because he was at the table. . . .
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
Q. 1641 State positively whether Julio Javellana did or did not sign as a
further would open the door to the possibility of all manner of fraud, substitution, and
witness to the will.
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.
A. 1641 I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe he
The decree entered by the court below admitting the instrument propounded therein to
signed.
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with
costs of this instance against the appellant.
Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
G.R. No. 1641 January 19, 1906
Q. 1641 Explain this contradictory statement.
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees. A. 1641 After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as it
appeared, for the purpose of signing, and when I was near the door I happened
Ledesma, Sumulong and Quintos for appellant.
to turn my face and I saw that he had his hand with the pen resting on the will,
Del-Pan, Ortigas and Fisher for appellees.
moving it as if for the purpose of signing.
CARSON, J.:
Q. 1641 State positively whether Julio moved his hand with the pen as if
for the purpose of signing, or whether he was signing
In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the evidence
A. I believe he was signing.
adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure. The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless, found
the following facts:
The following is a copy of the evidence which appears of record on this particular point,
being a part of the testimony of the said Isabeo Jena:

Q. 1641 Who first signed the will?

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 On the 26th day of December, 1901, Macario Jaboneta executed under the In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the
following circumstances the document in question, which has been presented witnesses are together for the purpose of witnessing the execution of the will, and in a
for probate as his will: position to actually see the testator write, if they choose to do so; and there are many
cases which lay down the rule that the true test of vision is not whether the testator
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered actually saw the witness sign, but whether he might have seen him sign, considering
that the document in question be written, and calling Julio Javellana, Aniceto his mental and physical condition and position at the time of the subscription.
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his (Spoonemore vs. Cables, 66 Mo., 579.)
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards The principles on which these cases rest and the tests of presence as between the
as a witness, at his request, and in his presence and in the presence of the testator and the witnesses are equally applicable in determining whether the witnesses
other two witnesses. Aniceto Jalbuena then signed as a witness in the signed the instrument in the presence of each other, as required by the statute, and
presence of the testator, and in the presence of the other two persons who applying them to the facts proven in these proceedings we are of opinion that the
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, statutory requisites as to the execution of the instrument were complied with, and that
took his hat and left the room. As he was leaving the house Julio Javellana the lower court erred in denying probate to the will on the ground stated in the ruling
took the pen in his hand and put himself in position to sign the will as a witness, appealed from.
but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena
had left the room the said Julio Javellana signed as a witness in the presence We are of opinion from the evidence of record that the instrument propounded in these
of the testator and of the witness Aniceto Jalbuena. proceedings was satisfactorily proven to be the last will and testament of Macario
Jaboneta, deceased, and that it should therefore be admitted to probate.
We can not agree with so much of the above finding of facts as holds that the signature
of Javellana was not signed in the presence of Jena, in compliance with the provisions The judgment of the trial court is reversed, without especial condemnation of costs,
of section 618 of the Code of Civil Procedure. The fact that Jena was still in the room and after twenty days the record will be returned to the court form whence it came,
when he saw Javellana moving his hand and pen in the act of affixing his signature to where the proper orders will be entered in conformance herewith. So ordered.
the will, taken together with the testimony of the remaining witnesses which shows that
Javellana did in fact there and then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that he was in the act of
leaving, and that his back was turned while a portion of the name of the witness was
being written, is of no importance. He, with the other witnesses and the testator, had
assembled for the purpose of executing the testament, and were together in the same
room for that purpose, and at the moment when the witness Javellana signed the
document he was actually and physically present and in such position with relation to
Javellana that he could see everything which took place by merely casting his eyes in
the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left
the room.

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. (See
Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)

12