Lopez vs. Liboro, G.R. No. L-1787, August 27, 1948 [Case Digest]

 

Lopez vs. Liboro,

G.R. No. L-1787, August 27, 1948

 

Facts:

            Agustin Liboro opposed the probate of what purports to be the last will and testament of Don Sixto Lopez.  Liboro questioned the validity of the will because of the following:

§  The first sheet is not paged either in letters or in Arabic numerals.

§  There are contradictions in the testimony of the instrumental witnesses

§  The testator affixed his thumb mark to the instrument instead of signing his name.

§  That the will is silence on the testator's understanding of the language used in the testament.

CFI held that the will was executed in all particulars as required by law.

 

Issue:

            Whether or not the will is defective as point out by Liboro.

 

Held:

            NO; as to the issue that first sheet of the will is not paged either in letters or in Arabic numerals; the purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, 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 conventional numerical words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second 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. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, — all of which, in the logical order of sequence, precede the direction for the disposition of the marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet cannot by any possibility be taken for other than page one.

 

            As to the issue that there are contradictions in the testimony of the instrumental witnesses; SC held that the contradictions in the testimony of the instrumental witnesses as are set out in the appellant's 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.

 

            With regards to the issue that the testator affixed his thumb mark to the instrument instead of signing his name; the reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends should have been done, 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 preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

 

            As to the issue that the will is silence on the testator's understanding of the language used in the testament; SC held that there is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde.