Garcia v. La Cuesta Et Al Digests

September 1, 2017 | Author: akaibengoshi | Category: Will And Testament, Testimony, Wills And Trusts, Common Law, Comparative Law
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1. In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents. G.R. No. L-4067, November 29, 1951 Paras, C. J.,

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.) BIBIANA ILLEGIBLE FACTS: Antero Mercado left a will dated January 3, 1943. The will was 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

The will appears to have been signed by Atty. Florentino Javier as he wrote the name of Antero Mercado and his name for the testator on the will. However, immediately after Antero Mercado’s name, Mercado himself placed an “X “ mark. The attestation clause was signed by the three instrumental witnesses. The attestation clause also states that all the pages of the will were “signed in the presence of the testator and all and each and every one of us witnesses.” However, the clause did not indicate that Atty. Javier wrote Antero Mercado’s name.

Petitioner 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. Javier is 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 several previous cases.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

2. YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA LLU, objectorsappellants. G.R. No. 6845, September 1, 1914

It is not presented here 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.


ISSUE: W/N THE WILL OF ANTERO MERCADO IS VALID. HELD: NO, THE WILL OF ANTERO MERCADO IS NOT VALID. 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.

Tomasa Elizaga Yap Caong died in the City of Manila on August 11, 1909. She died leaving two wills, one being executed on August 6, 1909 and drawn by Gabriel La O; and the other will being executed on August 11, 1909 and drawn by an instrumental witness, Anselmo Zacarias and Carlos Sabaco. On August 23, 1909, one Perfecto Gabriel, representing the petitioner Yap Tua, presented a petition in the CFI of Manila for the probate of the will of the deceased Tomasa Elizaga Yap Caong. After due hearing, the Honorable A.S. Crossfield, issued an order allowing the will of August 11, 1909. The court further ordered that Yap Tua be appointed as the executor of the will.

No further proceedings were held until February 28, 1910 when private respondents Yap Ca Kuan and Yap Ca Llu appeared and presented a petition to intervene in the case and asked the court for an appointment of a guardian ad litem as they are still minors. The court appointed Gabriel La O as guardian ad litem of the respondent minors. Gabriel La O filed a motion alleging the following: a) The 2nd will of August 11, 1909 that was admitted to probate by the lower court was null because: 1. The will was not authorized or signed by the witnesses as the law prescribes. 2. At the time of the execution of the will, the testatrix Tomasa was mentally incapacitated due to her sickness. 3. The testatrix’s signature was obtained through fraud and illegal influence upon the part of the persons who were to benefit from the same, and because Tomasa had no intention of executing the same. b) Before the execution of the will of August 11, 1909, which they alleged to be null, Tomasa had executed another will, on August 6, 1909.

c) Yap Ca Kuan and Yap Ca LLu were minors, even though they have been negligent in presenting their opposition to the legalization of the will, said negligence was excusable on account of their age.

The minors apparently filed a petition for new trial and attached to the said petition the will of August 6, 1909 of Tomasa and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano. Judge Crossfield granted the said motion and ordered a rehearing. During the rehearing or new trial, the oppositors argued that the name (Tomasa) and surname (Yap Caong) of the testatrix were written by different persons and presented a certain Tomas Puzon, a handwriting expert, to be a witness to such allegation. Gabriel La O was also called to testify to the following facts: a) he drew the will of August 6, 1909; b) it was drawn at the request of Tomasa and under her direction; c) Tomasa signed the will; and that she signed it in the presence of 3 instrumental witnesses and the latter also signed the same in her presence and in the presence of each other.

Severo Tabora was also called as a witness in the new trial and he testified on the ff matters: a) He signed two wills and was told by the people in the house of Tomasa that it was the same as the first one and that he was called as a witness to the second will. b) He was not sure whether Tomasa had signed the will since there were many people and he could not see because there was a screen at the door. c) The will was placed on the table far from Tomasa, it was in the house but outside the room were Tomasa was. d) He and Paez signed the will, he confirmed that Zacarias was there but Tabora was not sure whether Zacarias signed the will or not. e) He was not sure if Tomasa could see the will at the table. f) The will remained at table after he signed it. g) Tomasa was very ill. h) Immediately after he and Paez signed the will, he left because he was hungry. i) The place where the table was located was in the same house, on the floor, about two steps down from the floor on which Tomasa was.

Rufino Papa, a physician, was also called as witness to support the allegation that Tomasa was mentally incapacitated during the execution of the 2nd will. He testified on the following: a) He treated Tomasa before she died and during the time of her illness. b) He found the patient completely weak from sickness and in the 3rd stage of tuberculosis. c) Tomasa was lying in bed. d) When she asked the patient if she was feeling any kind of pain, she did not answer as she was in a condition of stupor, induced by the stage of uraemia that she was suffering. e) He found the patient on his first visit with little sense, on the 2nd also, and on the 3rd day she has lost all her intelligence.

Anselmo Zacarias was also called as a witness and testified on the ff: a) He had known Tomasa since they were children.

b) He wrote the will of Aug. 11, 1909 together with Carlos Sobaco (last part was written by Sobaco). c) He wrote it at the request of the uncle of Tomasa and Lorenzo (brother of Tomasa), instructed him as to the terms of the will. d) He had not spoken with Tomasa about the terms of the will as she was in a different room when it was written. e) He signed the will in the room where Tomasa was lying and the other witnesses also signed the will in the same room. f) He did not see Tomasa sign the will since he withdrew from the room when Tomasa started to write her name and when he came back, the will was already signed and in the hands again of Lorenzo. A 19 yr. old Julia Cruz was also called as witness and she testified that she had lived with Tomasa during the last week of her illness, that she knew that Tomasa made two wills and that a lawyer had drawn the will in the dining room; afterwhich it was taken to Tomasa by Zacarias, she did not see Paez but saw

Tabora. She saw Tomasa able to move about in the bed and saw her in the act of starting to write her signature when she told her to get her some water. Yap Ca Quiang also testified on rebuttal, that the will was on the table near the bed of Tomasa; that the table was outside the curtain or screen or near the entrance to the room where Tomasa was. Judge Crossfield after hearing the testimonies of the witnesses, admitted the will of Tomasa to probate. From that order, the protestants appealed. ISSUE: W/N THE WILL OF TOMASA IS VALID. HELD: YES, THE WILL OF TOMASA IS VALID FOR THE FOLLOWING REASONS: 1. THERE IS NO UNDUE INFLUENCE: The lower court found that no undue influence had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to influence her mind in any way. The lower court having had an opportunity to see, to hear, and to note the

witnesses during their examination reached the conclusion that a preponderance of the evidence showed that no undue influence had been used. we find no good reason in the record for reversing his conclusions upon that question. 2. TOMASA WAS MENTALLY CAPACITATED AT THE TIME OF THE EXECUTION OF THE WILL. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of the will in question. Several witnesses testified that at the time the will was presented to her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel justified in reversing his conclusions upon that question. 3. WHETHER OR NOT TOMASA ELIZAGA YAP CAONG EXECUTED THE WILL OF AUGUST 6, 1909 (EXHIBIT 1), WAS NOT THE QUESTION PRESENTED TO THE COURT. THE QUESTION PRESENTED WAS WHETHER OR NOT SHE HAD

DULY EXECUTED THE WILL OF AUGUST 11, 1909 (EXHIBIT A). There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will.

4. TOMASA DID SIGN THE SECOND WILL. Several witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name in t he will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will,

then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the will. The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In the present case we think the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute. 5. TOMASA SIGNED THE WILL IN THE PRESENCE OF THE WITNESSES AND THE LATTER IN HER PRESENCE AND OF ONE ANOTHER. During the trial of the case, the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of each other. Upon that question there is considerable conflict of proof. An effort was made to show that the will was signed by the witnesses in one room and by Tomasa in another.

A plan of the room or rooms in which the will was signed was presented as proof and it was shown that there was but one room; that one part of the room was one or two steps below the floor of the other; that the table on which the witnesses signed the will was located upon the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the will. In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that opportunity. Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all her faculties, the will

dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed.

3. In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs. ANASTACIA ABANGAN, ET AL., opponentsappellants. G.R. No. L-13431

November 12, 1919


FACTS: Ana Tabangan died in Cebu leaving a last will and testament. The will was admitted to probate by CFI Cebu but it was opposed by herein oppositor-appellants on the ground that the will was not validly executed. The will of Ana Tabangan consisted of two sheets. All the testamentary dispositions by the testatrix were placed on the first sheet, and the signatures of Martin Montalban (in the name of the testatrix and under her express direction) and the three instrumental witnesses

were found at its bottom. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. However, the will was not signed on the left margin nor it was numbered correlatively in letters in both sheets.

ISSUE: W/N THE WILL IS VALID. HELD: YES, THE WILL OF ANA ABANGAN IS VALID. In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged. In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed

at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden. What has been said is also applicable to the attestation clause. Wherefore, without considering

whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will. The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordal ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded. As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But the circumstance appearing

in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written. 4. Testacy of Sixto Lopez. JOSE S. LOPEZ, petitionerappellee, vs. AGUSTIN LIBORO, oppositor-appellant. G.R. No. L-1787

August 27, 1948


influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; 5) The signature of the deceased was procured by fraud or trick. The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. ISSUE: W/N THE WILL OF DON SIXTO LOPEZ IS VALID.

FACTS: Six months after the execution of the will of Don Sixto Lopez, Don Sixto died at the age of 83 in Batangas. Agustin Liboro opposed the probate of the will on 5 specific grounds: 1) The deceased never executed the will. 2) The deceased’s signature was forged. 3) The deceased was mentally incapacitated at the time of the execution of the will due to his advanced age. 4) One of the witnesses to the will was incapacitated and that the will was procured by duress,

HELD: YES, THE WILL OF DON SIXTO LOPEZ IS VALID. 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. 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 can not by any possibility be taken for other than page one. Also, the appellant impugns the will for its silence on the testator's understanding of the language used in the testament. However, 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. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect.

5. IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent. G.R. No. L-36033 November 5, 1982 Gutierrez, Jr., J.: FACTS: Petitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The will consisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental witnesses. The second page consisted of the attestation clause and the acknowledgment was signed at the end of the attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed the will for want of formality in its execution because the will was signed at

the bottom of the page solely by the testatrix, while the three witnesses only signed at the left hand margin of the page. The respondent Judge interprets Art. 805 of the NCC to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but also the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. Hence, this petition.

ISSUE: W/N THE WILL OF DOROTEA PEREZ IS VALID. HELD: YES, THE WILL OF DOROTEA PEREZ IS VALID. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. Moreover, We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is

really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page". This Court ruled in the case of Singson v. Florentino that the ” attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.”

In interpreting this omission in the attestation clause of the will of Dorotea Perez, we apply the liberal approach. As also held in the case of Icasiano v. Icasiano: “Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.” The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with this decision.

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