G.R. No.

L-30289 March 26, 1929 administrator lies entirely in the sound discretion of the court;
the function of such an administrator is only to collect and
SERAPIA DE GALA, petitioner-appellant, preserve the property of the deceased and to return an
vs. inventory thereof; he cannot be sued by a creditor and cannot
APOLINARIO GONZALES and SINFOROSO ONA, opponents- pay any debts of the deceased. The fact that no appeal can be
appellants. taken from the appointment of a special administrator indicates
that both his appointment and his removal are purely
discretionary, and we cannot find that the court below abused its
Sumulong, Lavides & Hilado for petitioner-appellant.
discretion in the present case. In removing Serapia de Gala and
Godofredo Reyes for opponent-appellant Gonzales.
appointing the present possessor of the property pending the
Ramon Diokno for opponent-appellant Ona.
final determination of the validity of the will, the court probably
prevented useless litigation.
OSTRAND, J.:
The appellants Sinforoso Ona and Apolinario Gonzales argue
On November 23, 1920, Severina Gonzales executed a will in that the will in question was not executed in the form prescribed
which Serapia de Gala, a niece of Severina, was designated by section 618 of the Code of Civil Procedure as amended by
executrix. The testatrix died in November, 1926, leaving no heirs Act No. 2645. That section reads as follows:
by force of law, and on December 2, 1926, Serapia, through her
counsel, presented the will for probate. Apolinario Gonzales, a
No will, except as provided in the preceding section,
nephew of the deceased, filed an opposition to the will on the
shall be valid to pass any estate, real or personal, nor
ground that it had not been executed in conformity with the
charge or affect the same, unless it be written in the
provisions of section 618 of the Code of Civil Procedure. On
language or dialect known by the testator and signed
April 2, 1927, Serapia de Gala was appointed special
by him, or by the testator's name written by some
administratrix of the estate of the deceased. She returned an
other person in his presence, and by his express
inventory of the estate on March 31, 1927, and made several
direction, and attested and subscribed by three or
demands upon Sinforoso Ona, the surviving husband of the
more credible witnesses in the presence of the
deceased, for the delivery to her of the property inventoried and
testator and of each other. The testator or the person
of which he was in possession.
requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as
On September 20, 1928, the Court of First Instance ordered aforesaid, each and every page thereof, on the left
Sinforoso Ona to deliver to Serapia de Gala all the property left margin, and said pages shall be numbered
by the deceased. Instead of delivering the property as ordered, correlatively in letters placed on the upper part of each
Sinforoso filed a motion asking the appointment of Serapia de sheet. The attestation shall state the number of sheets
Gala as special administratrix be cancelled and that he, or pages used, upon which the will is written, and the
Sinforoso, be appointed in her stead. The motion was opposed fact that the testator signed the will and every page
by both Apolinario Gonzales and by Serapia de Gala, but on thereof, or caused some other person to write his
March 3, 1928, it was nevertheless granted, Serapia was name, under his express direction, in the presence of
removed, and Sinforoso was appointed special administrator in three witnesses, and the latter witnessed and signed
her place, principally on the ground that he had possession of the will and all pages thereof in the presence of the
the property in question and that his appointment would simplify testator and of each other.
the proceedings.
The principal points raised by the appeal are (1) that the person
In the meantime and after various continuances and delays, the requested to sign the name of the testatrix signed only the
court below in an order dated January 20, 1928, declared the latter's name and not her own; (2) that the attestation clause
will valid and admitted it to probate. All of the parties appealed, does not mention the placing of the thumb-mark of the testatrix
Serapia de Gala from the order removing her from the office of in the will; and (3) that the fact that the will had been signed in
special administratrix, and Apolinario Gonzales and Sinforoso the presence of the witnesses was not stated in the attestation
Ona from the order probating the will. clause but only in the last paragraph of the body of the will.

Serapia's appeal requires but little discussion. The burden of the The first point can best be answered by quoting the language of
argument of her counsel is that a special administrator cannot this court in the case of the Estate of Maria Salva, G. R. No.
be removed except for one or more of the causes stated in 26881:1
section 653 of the Code of Civil Procedure. But that section can
only apply to executors and regular administrators, and the
An examination of the will in question disclosed that it
office of a special administrator is quite different from that of
contains five pages. The name of the old woman,
regular administrator. The appointment of a special
Maria Salva, was written on the left hand margin of the
Page 1 of 3
 first four pages and at the end of the will. About in the Serapia de Gala na isulat ang aking pangalan at
center of her name she placed her thumb-mark. About apellido, at sa tapat ay inilagda ko ang titik ng kanang
in the center of her name she placed her thumb-mark. daliri kong hinlalaki, sa walkas at sa bawat isa sa anim
The three witnesses likewise signed on the left-hand (6) na dahon ng kasulatang ito, at ito's ginawa niya sa
margin and at the end of the will. kautusan at sa harap ko at ng tatlong saksing
nagpapatutuo sa huli ngayon ika dalawang po't tatlo
On these facts, the theory of the trial judge was that ng Nobiembre ng 1920.
under the provisions of section 618 of the Code of
Civil Procedure, as amended by Act No. 2645, it was (Sgd.) SEVERINA GONZALES
essential to the validity of the will that the person
writing the name of the maker of the will also sign. Pinatutunayan namin na ang kasulatang ito na
Under the law prior to the amendment, it had been binubuo ng anim (6) na dahon na pinirmahan sa harap
held by this court that where a testator is unable to namin ni Serapia de Gala sa kahilingan ni Severina
write and his name is signed by another at his Gonzales sa wakas at sa mga gilid ng bawa't isa sa
request, in his presence and in that of the subscribing anim (6) na dahon at isinaysay na ang kasulatang ito
witnesses thereto, it is unimportant, so far as the ay siyang huling habilin o testamento ni Severina
validity of the will is concerned, whether the person Gonzales, ay pinirmahan namin, bilang mga saksi sa
who writes the name of the testator signs his own or wakas at sa gilid ng bawa't dahon sa harap at sa
not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But kahilingan ng tinurang testadora, at ang bawat isa sa
his Honor, the trial judge emphasizes that the amin ay pumirma sa harap ng lahat at bawat isa sa
amendment introduced into the law the following amin, ngayon ika dalawang po't tatlo ng noviembre ng
sentence: 'The testator or the person requested by taong 1920 ng taong 1920.
him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and
(Sgd.) ELEUTERIO NATIVIDAD
every page thereof, on the left margin . . ..' This
JUAN SUMULONG
requirement, it is said, was not lived up to in this
FRANCISCO NATIVIDAD
instance.
The translation in English of the clauses quoted reads as
There is, however, an entirely different view which can
follows:
be taken of the situation. This is that the testatrix
placed her thumb-mark on the will in the proper
places. When, therefore, the law says that the will In virtue of this will, consisting of six pages, that
shall be 'signed' by the testator or testatrix, the law is contains my last wish, and because of the fact that I
fulfilled not only by the customary written signature but cannot sign my name, I request my niece Serapia de
by the testator or testatrix' thumb-mark. The Gala to write my name, and above this I placed my
construction put upon the word 'signed' by most courts right thumb-mark at the end of this will and to each of
is the original meaning of a signum or sign, rather than the six pages of this document, and this was done at
the derivative meaning of a sign manual or my direction and in the presence of three attesting
handwriting. A statute requiring a will to be 'signed' is witnesses, this 23rd of November, 1920.
satisfied if the signature is made by the testator's
mark. (28 R. C. L., pp. 116-117). (Sgd.) SEVERINA GONZALES

The opinion quoted is exactly in point. The testatrix thumb-mark We certify that this document, which is composed of
appears in the center of her name as written by Serapia de Gala six (6) sheets and was signed in our presence by
on all of the pages of the will. Serapia de Gala at the request of Severina Gonzales
at the end and on the margins of each of the six (6)
The second and third points raised by Sinforoso Ona and sheets and was declared to contain the last will and
Apolinario Gonzales are sufficiently refuted by quoting the last testament of Severina Gonzales, was signed by us as
clause of the body of the will together with the attestation witnesses at the end and on the margins of each
clause, both of which are written in the Tagalog dialect. These sheet in the presence and at the request of said
clauses read as follows: testatrix, and each of us signed in the presence of all
and each of us, this 23rd day of November of the year
1920.
Sa katunayang ang kasulatang ito, na may anim na
dahon, ay siyang naglalaman ng aking huling
tagubilin, at sa hindi ko kaalamang lumagda ng aking
pangalan, ipinamanhik ko sa aking pamankin na si
Page 2 of 3
 (Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that

the testatrix signed by thumb-mark, but it does there appear that
the signature was affixed in the presence of the witnesses, and
the form of the signature is sufficiently described and explained
in the last clause of the body of the will. It maybe conceded that
the attestation clause is not artistically drawn and that, standing
alone, it does not quite meet the requirements of the statute, but
taken in connection with the last clause of the body of the will, it
is fairly clear and sufficiently carries out the legislative intent; it
leaves no possible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario

Gonzales that the fact that the will had been signed in the
presence of the witnesses was not stated in the attestation
clause is without merit; the fact is expressly stated in that
clause.

In our opinion, the will is valid, and the orders appealed from are
hereby affirmed without costs. So ordered.

Johnson, Street, Malcolm, Johns, Romualdez and Villa-Real,

JJ., concur.

Page 3 of 3