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Balonan vs. Abellana, G.R. No. L-15153, Aug. 31, 1960
Balonan vs. Abellana, G.R. No. L-15153, Aug. 31, 1960
SYLLABUS
LABARADOR, 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.
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 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
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. (Emphasis 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 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
witness in the presence of the testator and of one another. (Emphasis 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. . . . (Emphasis 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., 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 could have signed if he knew how or
was able to do so, 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 Doe; or in this form: "By the testator, John Doe,
Richard Doe." 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 forms given
above. He did not do so, however, and this is 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 areas
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.