REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

IN RE PROBATE OF THE WILL G. R. NO. L-10751

OF GABINA RAQUEL, deceased,
Present:
AUREA MATIAS,
Petitioner-Appellant, Paras, C. J.
Bengzon,
Montemayor,
Reyes, A.,
- versus – Bautista Angelo,
Labrador,
Concepcion,
Reyes, J. B. L.,
BASILIA SALUD, Endencia, and
Oppositor-Appellee. Feliz, JJ.

Promulgated:
June 23, 1958

x ------------------------------------------------------------------ x

D E C I S I O N

REYES, J. B. L., J.:

Appeal from an order of the Court of First Instance of Cavite

(issued in its Special Proceedings No. 5253 on February 10, 1956)
denying probate of the purported will of the late Gabina Raquel.

Admittedly the deceased left no ascendants or descendants, and

according to the proponents she executed the testamentary document on
January 27, 1950, in the City of Cavite, in the presence of Modesta
Gonzales, Felipa Samala and Lourdes Samonte, who signed as
instrumental witnesses, and of attorney Ricardo Agbunag, who prepared
the instrument.

The document in question appears to be composed of three pages.

On the lower half of the second page, preceding the attestation
clause, appears the signature “Gabina Raquel” which is apparently of
admitted authenticity. Alongside it is a smudge in violet ink, with
blurred ridge lines, claimed by the proponents to be a thumbmark
affixed by the testatrix. On the third page, at the end of the
attestation clause appear the signatures appearing on the left margin
of each page; and on the upper part of each page’s left margin appears
a violet ink smudge similar to the one previously described,

- 1 -
 - 2 - G. R. NO. L-10751

accompanied by the written words “Gabina Raquel” and underneath said

name “by Lourdes Samonte.”

In the purported testament, most of the properties of the

testatrix (appraised at over P160,000.00) are bequeathed to her niece
Aurea Matias, “in recompense for the services rendered to me for more
than 30 years;” some legacies are made to her other nephews and nieces
surnamed Salud and Matias; Aurea Matias is appointed executrix without
bond. Below the signature Gabina Raquel set at the foot of the will
proper, is an attestation clause in the Spanish language (like the
will itself) and reading as follows:

“ATESTIGUAMIENTO

Nosotros, Modesta Gonzales, Felipe Zabala y Lourdes

Samonte, por la presente certificamos que este Testamento
compueto de tres (3) paginas utiles fue otorgado como la
ultima voluntad y testament de Gavina Raquel, quien ha
suscrito y firmado en su margen izquierdo y al pie del
mismo, en presencia de todos y cada uno de nosotros, y
tambien nosotros hemos firmado y atestiguado este
testamento compuesto de tres (3) paginas cada uno en
presencia de otros y en la de la testadora, en su margen
izquierdo y al pie del atestiguamiento.

(SGD) MODESTA GONZALES (SGD) FELIPE SAMALA

(SGD) LOURDES SAMONTE”

The testamentary capacity of the testatrix Gabina Raquel despite

her ninety years of age and her disease (herpes zoster), is conceded.
It is also undisputed that she mastered Spanish (the language in which
the document is drawn) and that she could sign her name.

The proponent’s evidence is to the effect that the deceased

instructed attorney Agbunag to draft her will; that it was brought to
her in the morning of January 27, 1950; that she had the witnesses
summoned and received them in the “ante sala” of her house; that when
the witnesses were seated around a table with her and attorney
Agbunag, the will was read by the latter; that Gabina Raquel
manifested conformity thereto and thumbmarked the foot of the document
and the left margin of each page. Allegedly upon Agbunag’s
insistence, she attempted to sign with his fountain pen, but was only
able to affix the signature at the end of the testamentary
dispositions (in the lower half of page two) because immediately
after, she dropped the pen, grasping her right shoulder and
complaining of pain. After 20 minutes, attorney Agbunag, seeing that
Gabina Raquel could not proceed, instructed Lourdes Samonte to write
“Gabina Raquel by Lourdes Samonte” next to each thumbmark, and
thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta
Gonzalez signed, in that order, at the foot of the attestation clause
and at the left margin of each page. It is to be noted that witness
Modesta Gonzalez, a 64-year old woman did not testify, as she was
 - 3 - G. R. NO. L-10751

found to be suffering from high blood pressure, and proponent’s expert

evidence was to the effect that her memory was impaired, and unusual
excitement might cost her life.

The probate having been opposed by Basilia Salud, a niece of

Gabina Raquel, the case was set for trial. After hearing, Judge
Primitivo Gonzales of the Court of First Instance of Cavite rendered
judgment upholding the contentions of the oppositor and denied the
document’s admission to probate, principally on the following grounds:

(1) That the attestation clause did not state that the testatrix
and the witnesses signed each and every page of the will; and while
the left margins of each page exhibit the words “Gabina Raquel by
Lourdes Samonte,” the attestation does not express that Lourdes was
expressly directed to sign for the testatrix;

(2) That the proponent did not adequately explain the non-
production of witness Modesta Gonzalez, contrary to sec. 11, Rule 77
of the Rules of Court;

(3) That the alleged signing and thumbmarking by the deceased was
not done in the presence of the witnesses, nor did the latter sign in
the presence of Gabina Raquel;

(4) That fraud and bad faith attended the execution of the will.

From the adverse decision of the trial court, the proponent

appealed directly to this Court, because the value of the properties
involved in the litigation exceeded P50,000.00.

The trial court refused credence to the evidence for the

proponents on the basis of the expert testimony of Captain José
Fernandez of the Philippine Constabulary’s Criminal Laboratory, to the
effect that (1) the fingerprints appearing at the end and left margins
of the will were impressed over the name of the testatrix, and after
the name was written, contrary to what the proponent’s witnesses
asserted; (2) that the words “Gabina Raquel by Lourdes Samonte” on the
upper left hand margin of page two of the will were falsified and
appear to have been written over a previous tracing; (3) that the
person who wrote “Gabina Raquel by Lourdes Samonte” is different from
the one who wrote “Lourdes Samonte” as signature of an attesting
witness; (4) that the signature “Lourdes Samonte” on the left margin
of page 3 of the testament was written only after that of Felipa
Samala when the testimony for the proponent was that they were written
in the reverse order; and (5) that the pen used in signing “Gabina
Raquel” at the foot of the will had separated nibs, while the other
signatures in the document were written with a round point pen, again
contrary to the contention for the proponent that only one pen was
used.

After careful consideration of the testimony on record, we are of

the opinion that the facts adverted to by the expert for the
contestant do not clearly support the conclusions drawn by him. Thus,
 - 4 - G. R. NO. L-10751

his assertion that the fingerprints were affixed after writing the
name of the testatrix appears to be an 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 testatrix’s 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” (Soderman O’Connel, Modern Criminal Investigation,
2d Ed., p. 453); 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” (Osborn, Questioned Documents, 2d
Ed., p. 514). 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 prove
that stamping ink lines were made after the writing was done.

As to the alleged forgery of Samonte’s signature in page 3, 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. The expert’s 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
Samonte’s signature, when an authentic one was at proponent’s 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 proponent’s other witnesses.

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 (Roxas vs. Roxas, 48 O. G. 2177; cf Galvez vs. Galvez, 26
Phil. 243; Samson vs. Tan Quintin, 44 Phil. 573).

“We do not venture to impute bias to the experts

introduced during the trial, but we 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’. x x x”
 - 5 - G. R. NO. L-10751

“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.)” (Roxas vs. Roxas, supra)

We are aware that the bequest of the greater portion of

decedent’s estate in favor of proponent Aurea Matias is contained in
the first page of the contested will, while the only authentic
signature of the deceased appeared in the second page; but the
appointment of proponent as executrix of the will without bond (con
relevacion de fianza) appearing in the very same page (page 2) 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.

The court below likewise held against the proponent the fact that
the subscribing witness Modesta Gonzalez was not a witness; claiming
that such failure was a violation of sec. 11, Rule 77 of the Rules of
Court. But 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” (t.s.n. p.
301), could not logically hold proponent to account for not risking
Modesta’s 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.

Finally, the contestant urges that the fingermark of the

testatrix can not be regarded as her valid signature since it does not
show distinct identifying ridge lines; and thence, that the
attestation clause, transcribed earlier in this opinion, should be
held defective because it fails to state that Lourdes Samonte signed
for the testator. This 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 (De Gala vs. Ona, 53
Phil. 105; Dolor vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O. G.
2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and that where
such mark is affixed by the decedent, it is unnecessary to state in
the attestation clause that another person wrote the testator’s name
at his request (Payad vs. Tolentino, 62 Phil. 849). 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.
 - 6 - G. R. NO. L-10751

Appellant relies on the case of Garcia vs. Lacuesta, G. R. L-

4067, Nov. 29, 1951, wherein this Court denied probate holding that a
will signed with a cross written after the testator’s name is not a
sufficient signature. But in that case no showing was made that the
cross mark was the testator’s 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.

WHEREFORE, the judgment appealed from is reversed, and the

document Exh. “D” ordered admitted to probate. Let the records be
returned to the court of origin for further proceedings in accordance
with this opinion. Costs against appellees.

So Ordered.

(Sgd.) JOSE B. L. REYES

WE CONCUR:

(Sgd.) RICARDO PARAS

(Sgd.) CESAR BENGZON
(Sgd.) MARCELINO R. MONTEMAYOR
(Sgd.) ALEX. REYES
(Sgd.) FELIX BAUTISTA ANGELO
(Sgd.) ROBERTO CONCEPCION
(Sgd.) ALFONSO FELIX

sablan
Transcriber’s Notes:

This case was transcribed from a copy available in the Reserve Section of the UP College of Law
Library.

An Unreported Case
Determined case searchers will find that the Philippine Reports series has an entry of this case in
104 Phil. 1046, but a reading of that entry will show that the case is one of those unreported in
the series. Hence, a search for the case in other sources, such as the Law Library, needs be
resorted to.

Formal Characteristics of the Original Copy

The original copy of the case is typewritten and contained in six pages of long sheets of paper,
bound together with other cases in a compilation available in the library archives.

The first page is numbered by hand at the bottom, while the succeeding pages are numbered by type
at the top. All pages, except the first, are labeled with the locator or G. R. No. on the upper
right hand corner. On the other hand, beginning the first page, successive numbers can be seen on
the lower right hand corner, which starts from the number 16 and ends with the number 21. The
latter numbering may refer to the pagination for the whole bound case compilation.

Formal Changes
The transcription was done as close as possible to the original text as it was typewritten in the
original copy, disregarding the notations made by some readers of the original copy.

Slight modifications were made in the process of transcription, such as font face, font size,
document size, and page layout.

No Substantial Changes
On the other hand, no substantial changes from the copy were made.

Filled In Word
In page 5 of the transcription, the last words of the last paragraph read, “the absence of such
description...” However, in page 5 of the original copy containing the same words, the lower part
of the page is slightly torn off, so that the word between “absence” and “such” is missing. The
most logical word that would fill the blank which will preserve the sense of the statement is “of”,
and hence, the insertion of this word in the transcription.

Possible Mistakes or Errors in the Original Copy

If slight mistakes or errors were present in the original copy of the case, then most likely, these
mistakes or errors are the following:

1. In the quoted Atestiguamiento found in page 2,

a. “Felipe” in the paragraph should be “Felipa”;
b. “compueto” should be “compuesto”;
2. The last name Gonzales is usually interchanged with Gonzalez throughout the whole copy;
3. In page 5, in the last paragraph mentioning a list of case citations:
a. The Phil. citation for De Gala vs. Ona should be 53 Phil. 104, and not 53 Phil. 105;
b. Dolor vs. Diancin should be Dolar vs. Diancin;
c. The Phil. citation for Payad vs. Tolentino should be 62 Phil. 848, and not 62 Phil.
849.

On the other hand, a possible substantial mistake can be found in page 6, where the first paragraph
opens with the word “Appellant”. A reading of the other parts of the decision (and the judgment of
the Court) would reveal that this word should have been “Appellee ”, because the argument following
the word is more consistent with the contentions of the appellee in the case. (In fact, a reader
of the original copy made a handwritten correction of the word, striking out the letters “ant” and
placing above it the letters “ee”, so that the word would read “Appellee”.)

The Signature “sablan”

It appears that the word “sablan” typed at the end of the original copy is the s ignature or marking
of the one who prepared the copy.

Henry C. Flordeliza
Transcriber