Case Digest: Garcia vs. Lacuesta, G.R. No L-4067, November 29, 1957

Art. 805  | Succession, Signature

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:
Paras, C.J.,

Petitioner:  Rosario Garcia

Respondents: Juliana Lacuesta, et al.

Recit Version:

Antero Mercado created a will. Atty. Florentino Javier appeared to have signed the will on behalf of Antero Mercado, followed by the phrase "A reugo del testator" and his own name. Antero Mercado allegedly marked a cross after his name. 

The petitioner argues that the cross written by the testator could be considered a valid signature, similar to a thumbmark. The court ruled that 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. The court also held that the cross cannot and does not have the trustworthiness of a thumbmark.

Facts:

On January 3, 1943, Antero Mercado created a will.

The will is written in the Ilocano dialect. It includes an attestation clause signed by the witnesses Numeriano Evangelista, Rosenda Cortes, and 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.

CFI-Ilocos Norte: Admitted the will to probate.

CA: Reversed the judgement of CFI-Ilocos Norte, ruling that the attestation clause fails to certify that:

1. 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. 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. The three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.

Issue:

WoN the cross written by the testator is as much a signature as a thumbmark. NO

Held:

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.

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.