G. R. No.
L-4067, November 29, 1951
IN THE
MATTER OF THE WILL OF ARTERO MERCADO, DECEASED.
ROSARIO
GARCIA VS. JULIANA LACUESTA, ET AL.
FACTS: The subject
will is that executed by Antero Mercado written in the Ilocano dialect. 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. Court of Appeals 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 the will complied with requirement of the
law.
RULING: NO.
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. Also, 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 a
cross to a thumbmark, and the reason is obvious. The cross cannot and does not
have the trustworthiness of a thumbmark.
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