Balonan v. Abellana

[No. L-15153.
August 31, 1960]

In the matter of the summary settlement of the Estate of the deceased
Anacleta Abellana. Lucio BALONAN, petitioner and
appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors and
appellants.
WlLLS; EXECUTION OF WlLL; SUBSCRIBED AT THE END BY SOME
PERSON OTHER THAN THE TESTATOR, INSUFFICIENT COMPLIANCE
WITH THE LAW.— A will subscribed at the end thereof by some person other
than the testator in such manner that the signature of said person appears above the
typewritten statement "Por la Testadora Anacleta Abellana * * *, Ciudad de
Zamboanga," may not be admitted to probate for failure to comply with the express
requirement of the law that the testator must himself sign the will or that his name
be affixed thereto by some other person in his presence and by his express
direction.
APPEAL from a judgment of the Court of First Instance of Zamboanga
City. Mijares, J.
The facts are stated in the opinion of the Court.
T. de los Santos for appellee.
Climaco & Climaco for appellants.
LABRADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City

admitting to probate the will of one Anacleta Abellana. The case was
originally appealed to the Court of Appeals where the following
assignment of error is made:
"The appellants respectfully submit that the Trial Court erred in holding that the
supposed testament, Exh. 'A', was signed in accordance with law; and in admitting
the will to probate."
In view of the fact that the appeal involves a question of law the said
court has certified the case to us.
The facts as found by the trial court are as follows:
"It appears on record that the last Will and Testament (Exhibit 'A'), which is sought
to be probated, is written in the Spanish language and consists of two (2)
typewritten pages (pages 4 and 5 of the record) double space. The first page is
signed by Juan Bello and under his name appears typewritten 'Por la testadora
Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of the three (3)
instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the
bottom of which appears the signature of T. de los Santos and below his signature
is his official designation as the notary public who notarized the said testament. On
the first page on the left margin of the said instrument also appear the signatures of
the instrumental witnesses. On the second page, which is the last page of the said
last Will and Testament, also appears the signature of the three (3) instrumental
witnesses and on that second page on the left margin appears the signature of Juan
Bello under whose name appears handwritten the following phrase, 'Por la
Testadora Anacleta Abellana'. The will is duly acknowledged before Notary
Public, Attorney Timoteo de los Santos." (Italics supplied.)
The appeal squarely presents the following issue: Does the signature of
Dr. Juan A. Abello above the typewritten statement "Por la Testadora
Anacleta Abellana * * *, Ciudad de Zamboanga," comply with the
requirements of the law prescribing the manner in which a will shall be
executed ?
The present law, Article 805 of the Civil Code, in part provides as
follows:
"Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other 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." (Italics
supplied.)
The clause "must be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in his presence
and by his express direction," is practically the same as the provisions of
Section 618 of the Code of Civil Procedure (Act No. 190) which reads
as follows:
"No will, except as provided in the preceding section shall be valid to pass any
estate, real or personal, nor charge or affect the same, unless it be in writing;
and signed by the testator, or by the testator's name written by some other 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 each other. * * * "
(Italics supplied)
Note that the old law as well as the new require that the testator himself
sign the will, or if he cannot do so, the testator's name must be written
by some other person in his presence and by his express direction.
Applying this provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the Code of Civil
Procedure that where the testator does not know how, or is unable, to sign, it will
not be sufficient that one of the attesting witnesses signs the will at the testator's
request, the notary certifying thereto as provided in article 695 of the Civil Code,
which, in this respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in his stead in
the place where he would have signed if he knew how or was able so to do, and
this in the testator's presence and by his express direction; so that a will signed in a
manner different than that prescribed by law shall not be valid and will not be
allowed to be probated.
"Where a testator does not know how, or is unable for any reason, to sign the
will himself, it shall be signed in the following manner:
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John
Doe, Richard Roe.' All this must be written by the witness signing at the request of
the testator.
"Therefore, under the law now in force, the witness Naval A. Vidal should have
written at the bottom of the will the full name of the testator and his own name in
one of the forms given above. He did not do so, however, and this failure to
comply with the law is a substantial defect which affects the validity of the will
and precludes its allowance, notwithstanding the fact that no one appeared to
oppose it."
The same ruling was laid down in the case of Cuison vs. Concepcion, 5
Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is unimportant whether
the person who writes the name of the testatrix signs his own or not.
Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13
Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not
appear written under the will by said Abellana herself, or by Dr. Juan
Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or that
his name be affixed thereto by some other person in his presence and by
his express direction.
It appearing that the above provision of the law has not been
complied with, we are constrained to declare that the said will of the
deceased Anacleta Abellana may not be admitted to probate.
Wherefore, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against petitioner.
Parás, C. J., Bengzon, Padilla, Concepción, Reyes, J. B.
L., Barrera, Gutiérrez David, and Dizon, JJ., concur.
Judgment set aside.
_______________
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[No. L-15153.

August 31, 1960]

Appeal from a decision of the Court of First Instance of Zamboanga City

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