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EN BANC

G.R. No. L-42258 January 15, 1936

In re Will of the deceased Leoncia Tolentino.
VICTORIO PAYAD, Petitioner-Appellant, vs. AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.

GODDARD, J.: chanrobles virtual law library

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 7, 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 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 testratrix requested Attorney Almario to write her name.chanroblesvirtualawlibrary chanrobles virtual law library

The last paragraph of the questioned will reads in part as follows:

En prueba de todo lo cual, firmo el presente testamento con mi marcha digital, poque no puedo estampar mi firma a causa de mi debilidad, rogando al abogado M. Almario que poga mi nombre en el sitio donde he de estampar mi marcha digital . . ..

The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and every age of time questioned will and the 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 for 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 her name inasmuch as the testratrix signed the will in question in accordance with law.chanroblesvirtualawlibrary chanrobles virtual law library

The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino, deceased, is hereby admitted to probate with the costs of this appeal against the oppositor-appellant.

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