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EN BANC

G.R. No. L-15153 August 31, 1960


In the Matter of the summary settlement of the state of the !e"ease!
ANA#L$A A%LLANA. L&#I' %AL'NAN, petitioner-appellee,
vs.
&(%IA A%LLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LA%ARA)'R, J.*
Appeal from a decision of the Court of First Instance of Zamboanga Cit admitting to probate the
!ill of one Anacleta Abellana. "he case !as originall appealed to the Court of Appeals !here the
follo!ing assignment of error is made#
"he appellants respectfull submit that the "rial Court erred in holding that the supposed
testament, E$h. %A%, !as signed in accordance !ith la!& and in admitting the !ill to probate.
In vie! of the fact that the appeal involves a 'uestion of la! the said court has certified the case
to us.
"he facts as found b the trial court are as follo!s#
It appears on record that the last (ill and "estament )E$hibit %A%*, !hich is sought to be
probated, is !ritten in the +panish language and consists of t!o ),* tpe!ritten pages
)pages - and . of the record* double space. The first page is signed by Juan Bello and
under his name appears typewritten "Por la testadora Anacleta Abellana, residence
Certificate A!!"#"$%, &nero $', !%(!, Ciudad de )amboanga*, and on the second page
appears the signature of three )/* instrumental !itnesses Blas +ebastian, Faustino 0acaso
and 1afael Ignacio, at the bottom of !hich appears the signature of ". de los +antos and
belo! his signature is his official designation as the notar public !ho notari2ed the said
testament. 3n the first page on the left margin of the said instrument also appear the
signatures of the instrumental !itnesses. 3n the second page, !hich is the last page of said
last (ill and "estament, also appears the signature of the three )/* instrumental !itnesses
and on that second page on the left margin appears the signature of 4uan Bello under !hose
name appears hand!ritten the follo!ing phrase, %5or la "estadora Anacleta Abellana6. "he
!ill is dul ac7no!ledged before Notar 5ublic Attorne "imoteo de los +antos. )Emphasis
supplied*
"he appeal s'uarel presents the follo!ing issue# 8oes the signature of 8r. 4uan A. Abello above
the tpe!ritten statement %5or la "estadora Anacleta Abellana . . ., Ciudad de Zamboanga,%
compl !ith the re'uirements of la! prescribing the manner in !hich a !ill shall be e$ecuted9
"he present la!, Article :;. of the Civil Code, in part provides as follo!s#
Ever !ill, other than a holographic !ill, must be subscribedat the end thereof b the testator
himself or by the testator*s name written by some other person in his presence, and b his
e$press direction, and attested and subscribed b three or more credible !itness in the
presence of the testator and of one another. )Emphasis supplied.*
"he clause %must be subscribed at the end thereof b the testator himself or b the testator6s
name !ritten b some other person in his presence and b his e$press direction,% is practicall
the same as the provisions of +ection <=: of the Code of Civil 5rocedure )Act No. =>;* !hich
reads as follo!s#
No !ill, e$cept as provided in the preceding section shall be valid to pass an estate, real or
personal, nor charge or affect the same, unless it be in !riting and signed b the testator, or
b the testator6s name !ritten b some other person in his presence, and b his e$press
direction, and attested and subscribed b three or more credible !itnesses in the presence
of the testator and of each other. . . . )Emphasis supplied*.
Note that the old la! as !ell as the ne! re'uire that the testator himself sign the !ill, or if he
cannot do so, the testator6s name must be !ritten b some other person in his presence and b
his e$press direction. Appling this provision this Court said in the case of E$ 5arte 5edro
Arcenas, et al., 5hil., ?;;#
It !ill be noticed from the above-'uoted section <=: of the Code of Civil 5rocedure that
!here the testator does not 7no! ho!, or is unable, to sign, it !ill not be sufficient that one of
the attesting !itnesses signs the !ill at the testator6s re'uest, the notar certifing thereto as
provided in Article <>. of the Civil Code, !hich, in this respect, !as modified b section <=:
above referred to, but it is necessar that the testator6s name be !ritten b the person
signing in his stead in the place !here he could have signed if he 7ne! ho! or !as able to
do so, and this in the testator6s presence and b his e$press direction& so that a !ill signed in
a manner different than that prescribed b la! shall not be valid and !ill not be allo!ed to be
probated.
(here a testator does not 7no! ho!, or is unable for an reason, to sign the !ill himself, it
shall be signed in the follo!ing manner#
4ohn 8oe b the testator, 1ichard 8oe& or in this form# %B the testator, 4ohn 8oe, 1ichard
8oe.% All this must be !ritten b the !itness signing at the re'uest of the testator.
"herefore, under the la! no! in force, the !itness Naval A. @idal should have !ritten at the
bottom of the !ill the full name of the testator and his o!n name in one forms given above.
Ae did not do so, ho!ever, and this is failure to compl !ith the la! is a substantial defect
!hich affects the validit of the !ill and precludes its allo!ance, not!ithstanding the fact that
no one appeared to oppose it.
"he same ruling !as laid do!n in the case of Cuison +s. Concepcion, . 5hil., ..,. In the case of
Barut +s. Cabacungan, ,= 5hil., -<=, !e held that the important thing is that it clearl appears that
the name of the testatri$ !as signed at her e$press direction& it is unimportant !hether the person
!ho !rites the name of the testatri$ signs his o!n or not. Cases of the same import areas follo!s#
)&, Parte4uan 3ndevilla, =/ 5hil., -?>, Calua +s. 8omingo, ,? 5hil., //;& Barcia +s. Cacuesta,
>; 5hil., -:>*.
In the case at bar the name of the testatri$, Anacleta Abellana, does not appear written under the
will by said Abellana herself, or by -r. Juan Abello. "here is, therefore, a failure to compl !ith the
e$press re'uirement in the la! that the testator must himself sign the !ill, or that his name be
affi$ed thereto b some other person in his presence and b his e$press direction.
It appearing that the above provision of the la! has not been complied !ith, !e are constrained to
declare that the said !ill of the deceased Anacleta Abellana ma not be admitted to probate.
(AE1EF31E, the decision appealed from is hereb set aside and the petition for the probate of
the !ill denied. (ith costs against petitioner.