G.R. No. L-14322; February 25, 1960
In the matter of the TESTATE ESTATE OF PETRONILA TAMPOV, deceased, vs. DIOSDADA ALBERASTINE, petitioner-appellant.

FACTS

This case concerns the probate of a document purporting to be the last will and testament of Petronila Tampoy. The trial court denied the petition for probate on the specific ground that the left-hand margin of the first page of the will does not bear the thumbmark of the testatrix. The facts, as found by the trial court and which are uncontroverted due to the absence of any opposition to the probate, are as follows: On November 19, 1939, Petronila Tampoy, a widow without children, asked Bonifacio Miñoza to read and explain the contents of the will (Exhibit A) at her house in Argao, Cebu, in the presence of the three instrumental witnesses, Rosario K. Chan, Mauricio de la Peña, and Simeon Omboy. After conforming to its contents, she asked Bonifacio Miñoza to write her name at the foot of the will on the second page, which he did. She then impressed her thumbmark between her name and surname in the presence of all three witnesses and Miñoza. Afterwards, Miñoza also signed at the foot of the will, as did each of the three witnesses. The testatrix and Miñoza signed part of the first page of the two-page will. All three instrumental witnesses signed at the foot of the attestation clause on the second page and on the left margin of both the second and first pages, in the presence of the testatrix, Miñoza, lawyer Kintanar, and each other. The will was executed freely and spontaneously by the testatrix, who was in full possession of her mental faculties and in good health. Petronila Tampoy died on February 22, 1957. The instituted heir, Carmen Alberastine, died two weeks later on March 7, 1957, leaving her mother, petitioner Diosdada Alberastine. Despite the lack of opposition and the testimony of the three witnesses that the document expressed the true and voluntary will of the deceased, the trial court denied probate solely because the first page lacked the testatrix’s thumbmark.

ISSUE

Whether the will can be admitted to probate despite the fact that the first page does not bear the thumbmark of the testatrix, even though the second page does and all pages were signed by the three instrumental witnesses.

RULING

No. The order of the trial court denying the probate is affirmed. The contention of the appellant cannot be sustained as it runs counter to the express provision of the law. Section 618 of Act No. 190, as amended, requires that the testator must sign the will and each and every page thereof in the presence of the witnesses, and that the witnesses must sign the will and each and every page thereof in the presence of the testator and of each other, a requirement that must be expressed in the attestation clause. This requirement is mandatory, and failure to comply with it is fatal to the validity of the will. Statutes prescribing the formalities for the execution of wills are strictly construed; all requirements are of equal importance and must be observed. Courts cannot supply a defective execution or dispense with statutory conditions. Since the will in question suffers from the fatal defect of not bearing the thumbmark of the testatrix on its first page, it fails to comply with the law and therefore cannot be admitted to probate.