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Feona Ivana D. Pitalcorin 1. The cases of Jaboneta vs. Gustilo, et al. and Nera vs.

Rimando deal with the signing of the three witnesses in the attestation clause in the presence of each other. In the case of Jaboneta vs. Gustilo, et al., the witnesses and the testator, Jaboneta were all together and in the same room. The witnesses were Julio Javellana, Aniceto Jalbuena and Isabelo Jena. Isabelo Jena signed first and then Aniceto Jalbuena in the presence of the testator and the other two witnesses. When it was the third witness turn to sign, Isabelo Jena took his hat and left the room. As he was leaving the house, Julio Javellana took the pen and put himself in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena. The issue now is whether or not Julio Javellana signed as a witness in the presence of the other two witnesses. The Supreme Court held that the fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the will convinces that the signature was affixed in the presence of Jena. In the case of Nera vs. Rimando, the question raised was whether one of the subscribing witnesses was present in the small room, or whether at the time of the execution when the testator and the other subscribing witnesses attached their signatures, one of the witnesses was outside the small room. The Supreme Court, through the evidence presented, held that indeed the witness was in the small room. Thus it necessitates the affirmance of the decree admitting the document to probate. However, had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will for not being done in the presence of the witness in the outer room. These cases would tell us that the true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at themoment of inscription of each signature. 2. The cases of Kalaw vs. Relova and Spouses Ajero vs CA tackle with the effect of erasures or alterations made in a holographic will. In the case of Kalaw vs. Relova, the Holographic Will as originally written designates Rosa Kalaw as her sole heir. However, there was an alteration made in the will crossing out Rosas name and inserting her brother Gregorios name as sole heir. Moreover, this alteration was not duly authenticated by the full signature of the executrix and mandatorily required by Article 814 of the Civil Code. The question now is what will be the effect of this alteration on the will. The Supreme Court held that although, ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his signature, the Will is not thereby invalidated as a whole but at most only as respects the particular words erased, corrected or interlined, the holographic Will in dispute contained only one substantial provision which was altered by substituting the original heir with another. Such alteration, which did not carry the requisite of full authentication by the full signature of the testator results in the invalidation of the entire Will as it is voided for the simple reason that nothing remains in the Will after that which could remain valid. In the case of Spouses Ajero vs. CA, the probate proceedings of a Holographic Will were opposed on the ground that the will contained alterations and corrections, which were not duly signed

by the decedent. The Supreme Court held in this case that in the case of holographic wills, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. It can be gleaned from these two cases that generally, any unsigned or undated disposition, alteration, and insertion do not necessarily invalidate the entire will unless the unsigned or undated disposition, alteration, and insertion is made on the substantial provision of the will. If the only substantial provision of a will is altered and it is not duly authenticated, it would appear that there was no will made. 3. The cases of Gan vs. Yap, and Rodelas vs. Aranza concern about Holographic Wills, which were lost or destroyed. In the case of Gan vs. Yap, a probate proceeding was instituted on the Holographic Will made by Felicidad Esguerra Alto Yap. However, the copy of the will was not presented. Apparently, the will has been lost. Petitioner tried to establish the contents and due execution of the Holographic Will only by the statements in open court of the witnesses. Hence, the issue on the appreciation of the testimonies in a probate of a Holographic Will arises. The Supreme Court held that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented because when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available for the only guaranty of authenticity, that is the testators handwriting, has disappeared. In the case of Rodelas vs. Aranza, the only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy in the probate proceeding of a holographic of Ricardo Bonilla. In coming up with a ruling, the Supreme Court enunciated that it is necessary that there be a comparison between sample handwritted statements of the testator and the handwritten will. Therefore, although the best and only evidence is the handwriting of the testator in said will, a photostatic copy or Xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court. Thus, generally, in a probate proceeding of a holographic will, the will itself must be presented; otherwise, it shall produce no effect because the law regards the document itself as material proof of authenticity. However, in a situation wherein the holographic will is lost or destroyed, the execution and the contents of the will may be proved by presenting a photostatic copy of the will and in no way through mere testimonies of witnesses. Through the photostatic copy, a comparison between sample handwritten statements of the testator and the handwritten will can be done. 4. The cases of Garcia vs. Lacuesta, et al, and De Gala vs. Gonzales lay down the effect of a thumbmark and a cross sign with respect to the testators signature when the latters name is written by another person. In the case of Garcia vs. Lacuesta, et al., it was Atty. Florentino Javier who signed the will of Antero Mercado and such undertaking was not indicated in the attestation clause. The testator Antero

Mercado was alleged to have written a cross immediately after his name. The effect of the failure to state in the attestation clause that Antero Mercado caused Atty. Florentino Javier to write the tertators name under his express direction is fatal. So, the question of whether or not the cross-mark is sufficient as a signature. The Supreme Court held in the negative for the reason that it is not pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. In the case of De Gala vs. Gonzales, a probate proceeding of a Will for the reason that it was not mentioned in the attestation clause that the testatrix signed by thumb-mark between her given name and surname written by another person. The Supreme Court ruled that there is an entirely different view which can be taken of the situation. This is that the testatrix placed her thumb-mark on the will in the proper places. Therefore, when the law says that the will shall be signed by the testator or testatrix, the law is fulfilled not only by the customary written signature but by the testator or testatrix thumb mark. A statute requiring a will to be signed is satisfied if the signature is made by the testators mark. It can be said that the mere sign of a cross cannot be liken to a thumb-mark and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumb-mark. Thus, a thumbmark is a valid signature. 5. The cases of Mondonido vs. De Roda, Barretto vs. Tuason, and Tordilla vs. Tordilla touch on the validity of a contract of sale in which the consideration is an inheritance. In the case of Mondonido vs. De Roda, there were two public writings on the sale of a portion of land which Ricardo de Roda will inherit to Mondonido. The question here is whether the public writings were valid. The Supreme Court held that the promise of sale of the portions of land is null and has no value at all because the contract involved a sale of a future inheritance. In the case of Barretto vs. Tuason, there were sales executed by the intervenors or predecessors which were questioned as invalid. The Supreme Court in ruling, stated the successory rights are transmitted from the death of the person leaving the hereditary estate. While it is true that at the time of the sales, the amount of the participations sold were not yet determined, but doubtless it could be fixed and reduced to figures through appraisal and liquidation. In the case of Tordilla vs. Tordilla, there was a contract entered into by the appellant and appellee and signed shortly before the death of their father. The contract is in the nature of a compromise and covered two items, namely, first, the support of the natural daughter which the brother agreed to assume for one year and, second, a proposed division of their future inheritance upon the death of their father. It is assumed that appellant has complied with his terms of the contract, and the father died before the obligation of the brother terminated. The second portion of the contract clearly relates to the anticipated future inheritance and as decided by the Supreme Court, is null and void under the provisions of Article 1271 of the Civil Code. These cases simplify the provisions of Article 1271 of the Civil Code which deals with transactions made involving future inheritance, which is apparently null and void. Also, these cases exhibit the reckoning point when one can validly execute a transaction or contract involving an inheritance.

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