[ G. R. No. L-4067, November 29, 1951 ]IN THE MATTER OF THE WILL OF ARTERO MERCADO, DECEASED.
ROSARIO GARCIA, PETITIONER, VS. JULIANA LACUESTA, ET AL., RESPONDENTS
FACTS:
The CA disallowed the will of Antero Mercado. The will is
written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, lay these presents do 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 of 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 testament, this
the third day of January, one thousand nine hundred forty three, (1943) A. D.
(Sgd.) HUMERIANO
EVANGELISTA (Sgd.) BOSENDO 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 ruego
del testador" and the name of Florentino Javier. Antero Meroado is alleged
to have written a cross immediately after his name.
The CA 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. Florentine 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 & 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 thereof in the presence of the testator and of each
other.
ISSUE:
Whether or not the attestation clause is valid
RULING:
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 cross appearing on the will is not the usual signature
of Antero Mercado or even one of the ways by which he signed his name. The mere
sign of a cross is not the same with a thumbmark. The cross cannot and does not
have the trustworthiness of a thumbmark.
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