GR L 4067; (November, 1951) (Digest)
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.
FACTS
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will, written in the Ilocano dialect, contains an attestation clause. 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 reversed the Court of First Instance of Ilocos Norte, ruling the attestation clause was defective for failing to certify: (1) the will was signed on all the left margins and at the end by Atty. Javier at the express request of the testator in the presence of the testator and all witnesses; (2) that after Javier signed the testator’s name, the testator wrote a cross at the end of his name and on the left margin of all three pages and at the end; and (3) that the three witnesses signed in all pages in the presence of the testator and each other.
ISSUE
Whether the attestation clause of the will is fatally defective.
RULING
Yes, the attestation clause is fatally defective. The Supreme Court affirmed the decision of the Court of Appeals. The attestation clause fails 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 petitioner’s argument that the cross written by the testator is a sufficient signature (akin to a thumbmark) and makes Javier’s signature a surplusage is rejected. The Court held that the mere sign of a cross cannot be likened to a thumbmark, as it does not have the same trustworthiness, especially since it was not shown to be the usual signature of the testator. This finding makes it unnecessary to determine the sufficiency of other recitals in the attestation clause. The appealed decision is affirmed.