In Re TAMPOY v.
ALBERASTINE
In the matter of the TESTATE ESTATE of PETRONILA TAMPOY,
deceased, vs. DIOSDADA ALBERASTINE, petitioner and appellant
No. L-14322. February 25, 1960
BAUTISTA ANGELO, J.;
DOCTRINE:
Where a will consist of two pages and the last page had been duly signed by the testatrix and the
three testimonial witnesses who also signed the first page but the testatrix failed to sign the left
margin of the first page, the will was not executed in accordance with law.
FACTS:
1. On 19 November 1939, Petronila Tampoy, a widow and without children, requested with
Bonifacio Minoza to read a testament and explain its contents to her in her house in San
Miguel street, municipality of Argao, province of Cebu in 19 November 1939, which he
did in the presence of tree instrumental witnesses, Rosario K. Chan, Mauricio de la Pena,
and Simeona Omboy.
2. After confirming the contents of the testament, she requested Bonifacio Minoza to write
her name at the foot of the testament in the second page, which he did, and after which
she stamped her thumbmark between her name and surname in the presence of all three
instrumental witnesses.
3. Bonifacio Minoza also signed at the foot of the testament, in the second page, in the
presence of the testator and all three abovenamed witnesses.
4. However, the testator, just like Bonifacio Minoza, did not sign on the left margin or any
part of the first page of the testament, composed of two pages.
5. All the three instrumental witnesses signed at the foot of the acknowledgment written in
the second page of the testament, and the left margin of the first and second page, in the
presence of the testator, Bonifacio Minoza, Atty. Kintanar, and the others.
6. The testament was executed freely and spontaneously, without having been threatened,
forced and intimidated, and not having exercised on her (the testator) undue influence,
being the same in full use of her mental faculties and enjoying good health.
7. On 22 February 1957, the testator died in here house in Argao.
8. On 7 March 1957, or two weeks after, the heir found in the testament, Carman Aberastine
died, leaving her mother, the petitioner Diosdada Alberastine.
9. After trial on the probate o a document purportedly to be the last and testament of
Petronila Rampoy, the trial court denied the petition on the ground that the left hand
margin of the first page of the will does not bear the thumbmark of the testatrix.
10. Petitioner appealed from this ruling.
11. The Court of Appeals certified the case to the Supreme Court because it involves purely a
question of law.
In Re TAMPOY v. ALBERASTINE
ISSUE:
Whether the absence of the testator’s thumbmark in the first page is fatal to render the will void
HELD: YES.
The Court cited Section 618 of Act 190, as amended, requires that the testator sign the will and
each and every page thereof in the presence of the witnesses, and that the latter sign the will and
each and every page thereof in the presence of the testator and of each other, which requirement
should be expressed in the attestation clause. This requirement is mandatory, for failure to
comply with it is fatal to the validity of the will.
Statutes prescribing the formalities to be observed in the execution of wills are very strictly
construed. A will must be executed in accordance with the statutory requirements; otherwise it is
entirely void.
In the present case, the contention that the petition for probate is unopposed, and that the three
testimonial witnesses testified and manifested to the court that the document expresses the true
and voluntary will of the deceased, cannot be sustained as it runs counter to the express provision
of the law.
Since the will suffers the fatal defect, as it does not bear the thumbmark of the testatrix on its
first page even if it bears the signature of the three instrumental witnesses, the same fails to
comply with the law and therefore cannot be admitted to probate.
