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ACOP vs PIRASO JIMENEZ Vda.

DE JAVELLANA vs JAVELLANA LOPEZ vs LIBORO In 1947, Don Sixto Lopez executed a will where Jose Lopez was named an heir. Agustin Liboro questioned the validity of the said will based on the following grounds, among others: 1. The first sheet, which is also the first page) is not paged either in letters or in Arabic numerals. 2. That the witnesses to the will provided contradictory statements. 3. That Don Sixto used his thumb mark to sign the will. 4. There was no indication in the will that the language used therein is known by Don Sixto Lopez. ISSUE: Whether or not the will is valid. HELD: Yes, the will is valid. 1. The omission to put a page number on the first sheet, if that be necessary , is supplied by other forms of identification more trustworthy than the convent ional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to t he contents of the second page. By their meaning and coherence, the first and se cond lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Further, the first pages is captioned Testamento. 2. The contradictions in the testimony of the instrumental witnesses as are s et out in Liboros appelants brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. 3. Don Sixto affixed his thumb mark to the instrument instead of signing his name. The reason for this was that he was suffering from partial paralysis. There is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or prefer ence. Both ways are good. 4. There is no statutory requirement which prescribes that it must be express ly placed in the will that the testator knows the language being used therein. I t is a matter that may be established by proof aliunde. YAP TUA vs YAP KA KUAN

Yap Tua vs. Yap Cua Kuan and Yap Ca Llu Facts: Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez. after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had executed a last will and testament; that he was present at the time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the deceased.

The Judge ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the record and marked. The court further ordered that one Yap Tua be appointed as executor of the will. Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired to intervene and asked that a guardian ad litem be appointed to represent them in the cause alleging That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of September, 1909, was null, for the following reasons: (a) Because the same had not been authorized nor signed by the witnesses as the law prescribes. (b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the same, due to her sickness. (c) Because her signature to the will had been obtained through fraud and illegal influence Also, before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by law. Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909, and to grant to said minors an opportunity to present new proof relating to the due execution of said will.

Issue: Whether of not the allegation of the respondent deserves credence

Ruling: No. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will. Said third assignment of error there is involved in the

statement that "The signature of Tomasa Elizaga Yap Caong, in her first will was not identical with that which appears in her second will. Several witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the will. During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of each other. Upon that question there is considerable conflict of proof. In this case, It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the will.

LEANO vs LEANO

The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her costs against her name, attached by some other person to the instrument offered for probate which purports to be her last will and testament, in the presence of three witnesses whose names are attached to the attesting clause, and that they attested and subscribed the instrument in her presence and in the presence of each other. We are of the opinion that the placing of the cross opposite her name at the construction of the instrument was a sufficient compliance with the requirements of section 618 of the Code of Civil Procedure, which prescribes that except where wills are signed by some other person than the testator in the manner and from herein indicated, a valid will must be signed by the testator. The right of a testator to sign his will by mark, executed animo testandihas been uniformly sustained by the courts of last resort of the United States in construing statutory provisions prescribing the mode of execution of wills in language identical with, or substantially similar to that found in section 618 of our code, which was taken from section 2349 of the Code of Vermont. (Page on Wills, par. 173, and the cases there cited in support of the doctrine just announced.) The trial judge was of contrary opinion, and declined to admit the instrument to probate as the last will and testament of the decedent. We are of opinion, however, that the

evidence of record satisfactorily establishes the execution of that instrument as and for her last will and testament in the manner and form prescribed by law. The judgment entered in the court below should therefore be reversed, without costs in this instance, and the record remanded to the court below, where judgment will be entered admitting the instrument in question to probate in accordance with the prayer of the petitioner. So ordered.

DOLAR vs DIANCIN Dolar vs Diancin Facts: The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of the will and on the left hand margin of each of its pages in the following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is detailed in nature, and disposes of an estate amounting approximately to P50,000. The will of the deceased was denied for probate in the CFI of Iloilo on the sole ground that the thumb marks appearing thereon were not the thumb mark of the testator. Two expert witness attested two conflicting opinions as to the authenticity of the thum bark.

Issue: Whether or not the CFI of Iloilo is correct in ruling against the authenticity of the thumb mark

Ruling: Yes.
The requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks or fingerprints is of course admissible. The method of identification of fingerprints is a science requiring close study .Where thumb impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the questioned thumbmarks, is evident .This we do here.

There is another means of approach to the question and an obvious one. The three instrumental witnesses united in testifying concerning the circumstances surrounding the execution of the will. He was later placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that he was the one who prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The testimony of a witness called by both parties is worthy of credit. EX PARTE ARCENAS ET. AL GUISON vs CONCEPCION

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