GARCIA v. LACUESTA

 G.R. No. L-4067
, November 29, 1951

FACTS: The will of Antonio Mercado (testator), dated January 3, 1943, is written in the Ilocano dialect and contains in the attestation clause: 

(1) Declaration that the testament of Antero Mercado was signed by himself and by the witnesses below the attestation clause; 

(2) That the signing is in the presence of the testator and witnesses, and the witnesses in the presence of the testator and each other; 

(3) That it was signed at the left margin of the 3 pages of the will; 

(4) That the will is written in the Ilocano dialect, which is spoken and understood by the testator; and 

(5) That it bears the corresponding number in letter which compose of the 3 pages of the will. 

The will likewise appears to be signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by “A ruego del testador (to beg the testator)” and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. 

CFI: Allowed the will 

CA: Reversed the judgment of CFI of Ilocos Norte. Ruled that attestation clause failed: 

(1) To certify That said testator has written a cross at the end of his name; and 

(2) 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. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses. 

Petitioner Garcia appealed to the SC by way of certiorari from the Decision of CA. 

Petitioner’s contention: There is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. That the cross is as much a signature as a thumbmark. 

ISSUE: Whether or not the attestation clause is fatally defective.

RULING: Yes, attestation clause is fatally defective. 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. Petitioner’s argument that such recital is unnecessary because the testator signed the will himself using a cross mark which should be considered the same as a thumb-mark (which has been held sufficient in past cases) is not acceptable.