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[No. 42258. January 15, 1936]

In re Will of the deceased Leoncia Tolentino. VICTORIO

PAYAD, petitioner and appellant, vs. AQUILINA
TOLENTINO, oppositor and appellant.

1. WILLS; ATTESTATION CLAUSE; TESTATOR'S

SIGNATURE.—It was not necessary that the attestation
clause in question should state that the testatrix
requested Attorney A to sign her name inasmuch as the
testatrix signed the will in question in accordance with
law.

2. ID. ; ID. ; TESTATOR'S MARK.—"A statute requiring a

will to be 'signed' is satisfied if the signature is made by
the testator's mark." (Quoted by this court from 28 R. C.
L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.)

APPEAL from an order of the Court of First Instance of

Manila. Rovira, J.
The facts are stated in the opinion of the court.
Vicente Foz, Marciano Almario and Leonardo Abola for
petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.

GODDARD, J.:

Both parties in this case appeal from an order of the trial

court denying the probate of the alleged will of Leoncia
Tolentino, deceased. That court found that the will in
question was executed by the deceased on the date
appearing thereon, September 1, 1933, one day before the
death of the testatrix, contrary to the contention of the
oppositor that it was executed after her death. The court,
however, denied probate on the ground that the attestation
clause was
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VOL. 62, JANUARY 15, 1936 849

Payad vs. Tolentino
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not in conformity with the requirements of law in that it is

not stated therein that the testatrix caused Attorney
Almario to write her name at her express direction.
The appeal of the oppositor-appellant is based upon the
alleged failure of the trial court in not finding that the will
in question was executed after the death of Leoncia
Tolentino, or that she was mentally and physically
incapable of executing said will one day before her death.
After a careful examination of the evidence on these points
we find no reason for setting aside the conclusion of the
trial court as set forth above. The assignments of the
oppositor-appellant are therefore overruled.
As to the contention of the petitioner-appellant, as
stated above, the trial court denied probate of the will on
the sole ground that the attestation clause does not state
that the testatrix requested Attorney Almario to write her
name. The last paragraph of the questioned will reads in
part as follows:

"En prueba de todo lo cual, firmo el presente testamento con mi

marca digital, porque no puedo estampar mi firma a causa de mi
debilidad, rogando al abogado M. Almario que ponga mi nombre
en el sitio donde he de estampar mi marca digital * * *."

The evidence of record establishes the fact that Leoncia

Tolentino, assisted by Attorney Almario, placed her thumb
mark on each and every page of the questioned will and
that said attorney merely wrote her name to indicate the
place where she placed said thumb mark. In other words
Attorney Almario did not sign for the testatrix. She signed
by placing her thumb mark on each and every page thereof.
"A statute requiring a will to be 'signed' is satisfied if the
signature is made by the testator's mark." (Quoted by this
court from 28 R. C. L., p. 117; De Gala vs. Gonzales and
Ona, 53 Phil., 104, 108.) It is clear, therefore, that it was
not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign
850

850 PHILIPPINE REPORTS ANNOTATED

Pasay Transportation Co. vs. Tanay Transit Co.

her name inasmuch as the testarix signed will in question

in accordance with law.
The appealed order of the trial court is reversed and the
questioned will of Leoncia Tolentino, deceased, is hereby

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admitted to probate with the costs of .this appeal against

the oppositor-appellant.

Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.

Order reversed; will admitted to probate.

______________

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