In re probate of the will of Gabina Raquel,

AUREA MATIAS V BASILIA SALUD

FACTS: The deceased Gabina purportedly executed a will, in Spanish, and in
the presence of 3 witnesses, namely Modesta Gonzales, Felipe Samala and
Lourdes Samonte, and her lawyer Atty Agbunag who drafted her will. The
event took place on the ante-sala of the house of Gabina in Cavite.
The will is composed of three pages (ung pagkakasunod sunod na lang sa
facts ang pagstate ko po. Pinapa drawing to ni mam sa board)
2nd page

Composed of part of the disposition and the beginning of the

attestation clause (Spanish)
But
between
these
two
appears
the
signature
Gabina
Raquel(authentic signature)
Alongside the signature is a smudge in violet ink, with blurred ridge
lines, claimed as thumb mark of Gabina
Upper part of the left margin appears a violet ink smudge claimed as
thumb mark
Accompanying the two thumb marks are the written words Gabina
Raquel and underneath this name are the words by Lourdes
Samonte
Signatures on the left margin by the witnesses (in this order: Lourdes
Felipa Modesta)

3rd page

Composed of the part of the attestation clause until its ending

At the end of the attestation clause appear the signature appearing on
every left margin of the pages of the will (signatures of witnesses) (in
this order: Lourdes Felipa Modesta)
Upper part of the left margin appears a violet ink smudge claimed as
thumb mark
Accompanying such thumb mark are the written words Gabina
Raquel and underneath this name are the words by Lourdes
Samonte

1st page

Composed of paragraphs of disposition (assumption)

Signatures on the left margin by the witnesses (in this order: Lourdes
Felipa Modesta) but opposition contest that in this page, Lourdes
signed after Felipa
Upper part of the left margin appears a violet ink smudge claimed as
thumb mark
Accompanying such thumb mark are the written words Gabina
Raquel and underneath this name are the words by Lourdes
Samonte
Contains the bequest of the greater portion of decedents estate to
Aurea

Most of the properties of the testator was bequeathed to her niece, herein
proponent Aurea in recompense for the services rendered to her for more
than 30 years. The testamentary capacity despite old age (90 y/o) and
disease (hepes zoster), is conceded. It is also undisputed that she mastered
the Spanish language, and she could sign her name. (Just read the last
paragraph of page 2 regarding the actual happenings in the signing of the
will )
CFI Cavite denied the validity of the document as the last will and
testament of Gabina, taking credence of the testimony of an expert witness
Captain Fernandez. Proponents appealed.
Main Issue: Whether or not the will is valid
HELD: AFFIRMATIVE
Sub- issue 1: Will is void because contrary to the assertion of the
proponents, the fingerprints appearing at the end and left margins of the will
are impressed over the name of the testatrix and after the name was written
(proponents said that thumb marks first before name/ signature of Gabina)
HELD: Will is valid
The opposition is a mere inference drawn from the fact that the ink of the
writing failed to spread along the ridge lines of the fingerprints. This
conclusion obviously failed to take into account the fact that the evidence is
that some 10 or 20 minutes elapsed between the affixing of the fingerprints
and the writing of
the marginal signatures, due to the fact that they were not written until after
a long wait for the testatrixs attack of pain to subside.

There was sufficient time for the fingerprint (which was made in rubber
stamp ink) to dry, and recognized authorities on the matter point out that
ink lines over rubber stamps will spread out if the
stamp is not dry and if the stamp impression is allowed to dry thoroughly
before the writing is written over it, the ink will not run out as it does on a
damp ink line. To such effect, the only composition of the rubber stamp ink
no doubt contributes. Thus, while the spreading out or running out of the
writing ink along the stamping ink lines proves that the writing was made
later, the absence of spread does not that stamping ink lines were made
after the writing was done.
Sub- issue 2: Will is void because Samontes (one of the witnesses who
wrote Gabina Raquel by Lourdes Samonte on each thumb mark) signature in
page 3 is forged.
Held: Will is valid
The lighter shade of the underlying characters strongly indicates that the
overwriting was made to correct ink failure or other imperfection in the first
writing. Fernandez opinion is also discredited by the fact that Samonte being
available to the proponent (since she testified in favor of the will), there
would be no sense in forging Samontes signature, when an authentic one
was at proponents disposal all the time. And assuming it to be true that in
page 3 of the will Exh. D, Samonte signed after Samala, while in the other
pages she had signed ahead, such occasional departure from the order
usually
followed does not signify that the execution of the testament was in any way
abnormal or fraudulent. As to the alleged use of two different pens, expert
Fernandez conclusions are backed more by opinion than by facts, besides
being contradicted by expert Espinosa, and the proponents other witnesses.
Sub- issue 3: Will is void because the bequest of the greater portion of the
estate given to Aurea is stated in the first page while the only authentic
signature of Gabina appears on the 2nd page
Held: Will is valid
The act is justified by the appointment of Aurea as executrix of the will
without bond appearing in the very same page (page 2) which fully bespeaks
the affection of the testatrix for the proponent, who had lived with the
deceased, helped and served her for thirty years, and morally confirms the
contested bequest
Sub- issue 4: Will is void because Modesta, one of the attesting witnesses,
did not testify in court, claiming that such failure was a violation of sec. 11,
Rule 77 of the Rules of Court.

Held: Will is valid. Act justified.

While Modesta Gonzalez was not placed on the stand, the proponent
made no secret of her whereabouts, nor of the reason why she was not
asked to testify: the record shows that both Dr. Bellaflor and Dr. Sanchez
agreed that Gonzalez was suffering from hypertension, that she was in the
danger zone, and might collapse and die as a consequence of a little
excitement on her part. The trial court, having expressly made of record that
it would not like to assume responsibility for whatever might happen to this
woman could not logically hold proponent to account for not risking
Modestas death. At any rate, contestants were free to call her as their own
witness, had they felt justified in so doing; so that no unfavorable inference
can be drawn from the fact that Modesta Gonzalez was not called by the
proponent to the witness stand.
Sub- issue 5: Will is void because the thumb mark/ finger mark does not
constitute a valid signature since it does not show distinct identifying ridge
line and because the attestation clause is defective since it failed to state
that Lourdes Samonte signed for the testator.
Held: Will is valid
The Court has repeatedly held that the legal requisite that the will should be
signed by the testator is satisfied by a thumbprint or other mark affixed by
him and that where such mark is affixed by the decedent, it is unnecessary
to state in the attestation clause that another person wrote the testators
name at his request. While in some of these cases the signing by mark was
described in the will or in the attestation clause, it does not appear that the
Court ever held that the absence of such description is a fatal defect.
Reliance in the case of Garcia v Lacuesta is of no merit because in that
case no showing was made that the cross mark was the testators habitual
signature nor was any explanation given why he should use a cross when he
knew how to sign. In the case now before us, it was shown that the herpes
zoster that afflicted the right arm and shoulder of testatrix made writing a
difficult and painful act, to the extent that, after writing one signature on the
second page, she dropped the pen because of an attack of pain that lasted
many minutes and evidently discourage attempts to sign.
As to the clarity of the ridge impressions, it is so dependent on aleatory
circumstances (consistency of the ink, overinking, slipping of the finger, etc.)
as to require a dexterity that can be expected of very few persons; and we
do not believe testators should be required to possess the skill of trained
officers. It is to be conceded that where a testator employs an unfamiliar way
of signing, and both the attestation clause and the will are silent on the
matter, such silence is a factor to be considered against the authenticity of
the testament; but the failure to describe the unusual signature by itself
alone is not sufficient to refuse probate when the evidence for the proponent

fully satisfies the court (as it does satisfy us in this case) that the will was
executed and witnessed as required by law.
Sub- issue 6: Whether or not lower court erred in ruling that preponderance
of the evidence lay with the contestants
HELD: Yes
The basis for the conclusions of expert Fernandez, who admitted having been
engaged on a contingent basis, not being satisfactorily established and his
testimony being contradicted by the two witnesses to the will and the expert
for the defense, the lower court erred in considering that the preponderance
of the evidence lay with contestants.
The Court ruled in several cases that they do not venture to impute
bias to the experts introduced during the trial, but they hasten to state that
the positive testimony of the three attesting witnesses
ought to prevail over the expert opinions which cannot be mathematically
precise but which on the contrary, are subject to inherent infirmities.
Speculations on these matters should give way to the positive
declarations of the attesting witnesses. The law impliedly recognizes the
almost conclusive weight of the testimony of attesting witnesses when it
provides that if the will is contested, all the subscribing witnesses present in
the Philippines and not insane, must be produced and examined, and the
death, absence, or insanity or any of them must be satisfactorily shown to
the court. (Section 11, Rule 77, Rules of Court.)