G.R. No.

L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J .:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) 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; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, 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. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that 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. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here 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. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.


December 20, 1930
G.R. No. 33365
Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-
appellant,
vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.
Montinola, Montinola and Hilado for appellant.
Lopez Vito and Lopez Vito for appellees.
MALCOLM, J .:
The will of the deceased Paulino Diancin was denied probate in the Court of First
Instance of Iloilo on the sole ground that the thumbmarks appearing thereon were
not the thumbmarks of the testator. Disregarding the other errors assigned by the
proponent of the will, we would direct attention to the third error which challenges
squarely the correctness of this finding.
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.
For comparative purposes, Exhibit 8, a document of sale containing an admittedly
genuine thumbmark of Paulino Diancin, was presented. Photographs of the
thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in
evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter
gave as his opinion that the thumbmarks had not been made by the same person
.One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The
petition of the proponent of the will to permit the will to be sent to Manila to be
examined by an expert was denied. On one fact only were the opposing witnesses
agreed, and this was that the ink used to make the thumbmarks on the will was of
the ordinary type which blurred the characteristics of the marks, whereas the
thumbmark on Exhibit 8 was formed clearly by the use of the special ink required
for this purpose. The trial judge expressed his personal view as being that great
differences existed between the questioned marks and the genuine mar.
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.
(Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3
Chamberlayne on the Modern Law of Evidence, sec. 2561, notes 3.)
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. It was stated that in addition to the testator
and themselves, on other person, Diosdado Dominado, was present. This latter
individual was called as a witness by the oppositors to the will to identify Exhibit
8. 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.
We reach the very definite conclusion that the document presented for probate as
the last will of the deceased Paulino Diancin was, in truth, his will, and that the
thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly,
error is found, which means that the judgment appealed from must be, as it is
hereby, reversed, and the will ordered admitted to probate, without special finding
as to costs in this instance.

February 8, 1928
G.R. No. 27989
Intestate of the deceased Pedro de Gala.
SINFOROSO DE GALA, petitioner-appellee,
vs.
GENEROSO DE GALA and JOSEFA ALABASTRO, opponents-appellants.
Jose G. Generoso and Araneta & Zaragoza for appellants.
Abad Santos, Camus, Delgado & Recto for appellee.
STREET, J .:
This is an administration proceeding from the Court of First Instance of the
Province of Tayabas whereby the petitioner, Sinforoso de Gala, seeks to enforce
the liquidation of the estate of his father, Pedro de Gala, deceased, against Josefa
Alabastro, as widow, and Generoso de Gala, a son of the decedent and half-brother
of the plaintiff, and to recover from them the hereditary portion which the plaintiff
alleges pertains to him in said estate. Opposition was made to the proceeding by
the two defendants, and this opposition finally took the form of a motion to
exclude the plaintiff from the participation in the estate on the ground that he had
no heritable interest therein. Upon considering this motion the trial court sustained
the plaintiff's right and denied the motion. From this order the defendants appealed.
The first point raised in the appellants' bill of exceptions has reference to a matter
of procedure, which, in the view we take of the case, is not necessary to the
decision. We therefore provisionally assume that no error was committed by the
trial judge in entertaining the motion which gave origin to the appealed order; and
we pass at once to the consideration of the question of substantive law involved in
the case. The facts are unfortunately few and undisputed.
It appears that Pedro de Gala died intestate in the City of Manila on or about July
23, 1919, leaving an estate in the Province of Tayabas and in the City of Manila,
consisting of real and personal property. It is stated in the petition that the value of
this estate is approximately five hundred thousands pesos (P500,000), with an
annual income of about fifty thousand pesos (P50,000). The defendants do not
admit that the value of the estate reaches the amount stated, but it is evidently
large. The plaintiff, Sinforoso de Gala, is a natural son of Pedro de Gala and was
born on June 17, 1879, while Generoso de Gala, one of the defendants herein, is a
legitimate son of Pedro de Gala and was born on July 17, 1881. As already stated,
the other defendant, Josefa Alabastro, is the widow of Pedro de Gala
The plaintiff, Sinforoso de Gala, was never recognized as a natural son by the
voluntary act of his father, Pedro de Gala, in life; and in order to enforce
recognition the plaintiff, on august 29, 1917, instituted an action against his father
to compel recognition. While this litigation was pending Pedro de Gala died, and
Josefa Alabastro and Generoso de Gala were substituted as defendants. When the
cause was finally heard in the Supreme Court, upon appeal from a judgment of the
Court of First Instance, which had been unfavorable to the plaintiff, said judgment
was reversed and judgment was here entered requiring the defendants to recognize
the plaintiff as the natural son of Pedro de Gala (De Gala, 42 Phil., 771). Pursuant
to said judgment, and in order to obtain his share in the estate of his deceased
father, the present proceeding was begun.
The right of the plaintiff to participate in the estate of his deceased father is based
upon articles 134 and 942 in relation with article 840 of the Civil Code, defining
the heritable portion of a recognized natural child in case of the concurrence of
such heir with one or more legitimate children. In this connection it will be
remembered that the right of a recognized natural child to inherit any part of the
estate of his father was, in Spanish law, first conferred by the Civil Code, which
went into effect in the Philippine Islands on December 8, 1889.
In support of the plaintiff's right to participate in the estate, reference is made to
subsection 12 of the transitory provisions of the Civil Code wherein it is stated, in
effect, that the estates of those who die, with or without will, subsequently to the
taking effect of the Civil Code, shall be allotted and divided according to the Code,
and that the legal portion given by the Code shall be respected. The defendants on
the contrary question the heritable right of the plaintiff, basing their contention on
No. 1 of the transitory provisions, as interpreted by this court in Rocha vs. Tuason
and Rocha de Despujols (39 Phil., 976).
The transitory provisions thus brought under discussion are vital to the case and are
therefore here reproduced:
Changes introduced by this Code prejudicial to rights acquired under prior civil
law shall not have rotroactive effect.
For the application of the corresponding legislation in cases not expressly
determined in the Code, the following rule shall be observed:
1. Rights originating, according to prior legislation, in acts that occurred under the
regimen of such legislation shall be governed thereby, even if the Code regulates
them in some other way or does not recognize them. But if the right shall have
been declared for the first time in this Code, it shall have effect at once, although
the fact originating it may have occurred under the former regimen, whenever it is
not prejudicial to any other acquired right of equal origin.
x x x x x x x x x
12. Rights to the inheritance of one who may have died, with or without a will,
before this Code goes into effect, shall be governed by prior legislation. The
inheritance of those dying afterwards, with or without a will, shall be allotted and
divided in accordance with this Code, but in harmony, in so far as the latter permits
it, with the testamentary dispositions. Therefore legal portions, betterments, and
legacies shall be respected; but their amounts shall be reduced when it is not
possible in any other manner to give to each participant in the inheritance the share
pertaining to him according to this Code.
From the facts already stated it will be seen that both the natural and the legitimate
son of Pedro de Gala were born before the Civil Code went into effect in these
Islands; while the death of the father and the enforced judicial recognition of the
natural son occurred under the regimen of said Code. It is a tenable assumption that
the legal recognition of the plaintiff as a natural son should be considered as
effective from the date of the filing of the complaint in 1917; but if not to so, it was
at least effective from the date of the judgment entered in 1992. For the purposes
of this suit the point is unimportant, since it is clear that in any case legal
recognition did not occur until long after the Civil Code became effective in these
Islands.
As the death of Pedro de Gala and the opening of the succession to his estate
occurred under the regimen of the Civil Code, we are of the opinion that No. 12 of
the Transitory Provisions is of exact and particular application, and that there is
nothing in No. 1 of the same provisions which supplies any obstacle to the
application of No. 12 to the facts of this case. In paragraph No. 12 it is expressly
declared that the estates of those who die after the Code becomes effective shall be
distributed according to the Code and that legal portions shall be respected. This
language can have no other meaning than that the hereditary portion given to the
recognized natural child By No. 3 of article 134 of the Civil Code shall be
recognized as valid, for the circumstance that the plaintiff in this case, though
beginning his action for acknowledgement within the life of his father, did not
succeed in obtaining a judgment compelling recognition until after his father was
dead cannot be considered in any wise prejudicial to him. That No. 12 of the
Transitory Provisions is applicable to the estates of persons dying after the Civil
Code went into effect is recognized in decisions of the Supreme Court of Spain
dated respectively March 20, 1897, and June 24, 1897; and this doctrine is
expounded by Manresa in his comment upon No. 12 as follows:
Here is the legal reason and at the same time the determination of the scope and
meaning of the rule of which we speak. It does not mean that the succession shall
be governed by one or the other law according to whether the ancestor may have
died before or after the Code went into effect, nor was there are need of making
such a statement, because this is already provided for in rule 2, and what is
provided for in the present rule by way of exception to what is provided for in the
former is that the rights of forced heirs to the inheritance in successions opened
after the Civil Code went into effect shall always be governed by the provisions of
the latter, to which end the provisions of wills executed before May 1st, 1889,
referring to the rights of said heirs, will be adjusted to the provisions of said Code.
The reason of that is obvious, because in the matter of succession there is no vested
right until the succession is opened that is, till the death of the person whose
inheritance is in question, as we have already said on another occasion, and by the
present it is made to conform with the precepts of modern legislation, harmonizing
it and making it compatible with the transcedent reform effected by the Civil Code.
The Supreme Court, in its decision of June 24, 1897, giving the same explanation
to the present rule, declared that the principle of the irretroactivity of the new law
governs only such rights as originated under the regimen of the old law, it being
well known that hereditary rights do not vest until the death of the person whose
inheritance is in question. Therefore, they cannot be governed by the old law if the
death is posterior to the new, which is the very thing we have stated as being the
foundation of juridicial reason of this precept.
Directing our attention now to No. 1 of the Transitory Provisions, which is
supposed by the appellants to be incompatible with the right asserted by the
plaintiff, we note first that proposition No. 1 of a more general nature than
proposition No. 12, since the latter provides a particular rule for the distribution of
the estates of persons dying after the Code enters into effect, while No. 1 states a
general rule for harmonizing certain competing rights. In accordance then with the
rule that the particular governs the general, No. 12 must control over No. 1.
It will be noted that, under No. 1, where there are two competing rights, one of
which is given for the first time by the Code, the law looks to the acts in which the
two competing rights may have originated, and when it is found that the acts which
gave origin to the competing rights occurred prior to the adoption of the Code, the
right newly recognized in the Code cannot be given effect, because prejudicial to
the other right. In the case before us, while it is evident that the successional right
of the legitimate son, Generoso de Gala, did not become vested until the death of
his father, yet it is also clear that this right is derived from a fact which occurred
under law anterior to the Code, namely, the fact that said son was born with the
status of legitimate son. It is this fact which originated the successional right of this
heir. But with respect to the natural son, Sinforoso de Gala, it is equally obvious
that the act that gave origin to his successional right was the enforced judicial
recognition resulting from the civil action begun by the plaintiff in 1917. This act
occurred under the Code. In this connection it must be remembered that the fact of
birth does not give the natural child any heritable right whatever in the estate of his
father. This is equally true of both the old and the new law. It is the recognition of
the natural child that originates his right of succession, recognized for the first time
in the Code. As a consequence the two competing successional rights in this case
do not have the same origin in respect to the estate of law under which they
occurred, since one had its origin in an act occuring under the anterior legislation
while the other had its origin in an act occuring under the Code.
Upon analyzing the language of No. 1 of the Transitory Provisions it will be noted
that it is only when the two competing rights have their origin in acts occuring
under the old regime that the restriction applies which prohibits the right newly
granted in the Code from having it due effect. If the acts originating the two rights
occur under the Code, or if either occurs under the Code, the Code provision must
rule, and the right newly given by it prevails. It is obvious, for instance, that if, in
the case before us, the legitimate soon had been born after the Code entered into
effect, the provisions of the Code would have prevailed; also that the same result
would have followed in such case even if the act of recognition of the natural so
had occurred prior to the date when the Code took effect.
But it is supposed that the decision of this court in the case of Rocha vs. Tuason
and Rocha de Despujols (39 Phil., 976), is inconsistent with the right of the
plaintiff. This is a mistake. In the case mentioned both the natural and the
legitimate child were born under the regimen of the old law, and in addition to this
there had been a tacit recognition of the natural child which was valid under
said law long prior to the date when the Civil Code went into effect. Both the
competing right in that case therefore had their origin in acts which occurred under
the earlier regimen; and this circumstance makes the very case for the application
of the restriction upon the new right which is expressed in the closing words of No.
1 of the Transitory Provisions. It may be noted that three members of the court
dissented in Rocha vs. Tuason and Rocha de Despujols, a circumstance which
detracts in some measure from the weight of the precedent; and the attorneys for
the appellee have drawn in question the correctness of the judgment. Into this
controversy it is not necessary to enter. We may observe, however, that the opinion
of the court in the case referred to makes no reference to No. 12 of the Transitory
Provisions, which if reflectively weighed, might have been found pertinent to the
decision.
The order appealed from is in our opinion without error, and it is accordingly
affirmed, with costs. So ordered.