Case Digest: Lopez vs. Liboro, G.R. No. L-1787, August 27, 1948

 Art. 805  | Succession, Page Number, Thumbmark

Provision:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

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

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

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

Ponente:
Tuason J.,

Petitioner:  Testacy of Sixto Lopez. Jose S. Lopez

Respondent: Agustin Liboro

Recit Version:

Agustin Liboro opposed the probate of Don Sixto Lopez's will, citing defects including the lack of page numbering, an incapacitated witness, the use of a thumbmark instead of a signature, and the silence on the testator's understanding of Spanish language.

• On the Paging of Will: The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page.
• On the Credibility of Witnesses: Such contradictions in the testimony of the instrumental witnesses are incidents not all of which every one of the witnesses can be supposed to have perceived.
• On Affixing of Thumbmark: The testator was suffering from "partial paralysis." There is nothing suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. 
• On Testator's Understanding of Spanish: There is no statutory requirement that such knowledge be expressly stated in the will itself. 

Facts:

In March 1947, Don Sixto Lopez died at the age of 83 in Balayan, Batangas.

It was almost six months after he executed a will. 

Agustin Liboro opposed the probate of the will based on the following defects:.

1. That the will comprises two pages, each of which is written on one side of a separate sheet, but the first sheet is not paged either in letters or in Arabic numerals;
2. That one of the alleged instrumental witnesses was incapacitated to act as such;
3. That the testator affixed his thumbmark to the instrument instead of signing his name;
4. That the will is silent on the testator's understanding of the language used in the testament. 

Issue:

WoN the will is valid. YES

Held:

1. On the Paging of Will

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the substitution or of defecting the loss of any of its pages. 

In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numerical words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. 

By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, — all of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. 

Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one.

2. On the Credibility of Witnesses

On the merits we do not believe that the appellant's contention deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred.

Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses generally occur in the details of a certain incident, after a long series of questioning, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions in their testimony.

3. On Affixing of Thumbmark

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. 

3. On Testator's Understanding of Spanish

There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. 

This Court so impliedly ruled in Gonzales vs. Laurel, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed.