G.R. No.

L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the testator
and the other subscribing witnesses attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room connecting with the smaller room by a
doorway, across which was hung a curtain which made it impossible for one in the outside
room to see the testator and the other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion
that had this subscribing witness been proven to have been in the outer room at the time
when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is
not whether they actually saw each other sign, but whether they might have been
seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each

other if it appears that they would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The evidence in the case
relied upon by the trial judge discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with
relation to Jaboneta that he could see everything that took place by merely casting his eyes
in the proper direction and without any physical obstruction to prevent his doing so." And the
decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in the
proper direction they could have seen each other sign. To extend the doctrine further would
open the door to the possibility of all manner of fraud, substitution, and the like, and would
defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario Jaboneta,
deceased, because the lower court was of the opinion from the evidence adduced at the
hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another of the witnesses, as required by the provisions of section
618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point,
being a part of the testimony of the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641 After the witness Aniceto signed the will I left the house, because I
was in a hurry, and at the moment when I was leaving I saw Julio Javellana with the
pen in his hand in position ready to sign (en actitud de firmar). I believe he signed,
because he was at the table. . . .

Q.
1641 State positively whether Julio Javellana did or did not sign as a
witness to the will.
A.
1641 I can't say certainly, because as I was leaving the house I saw Julio
Javellana with the pen in his hand, in position ready to sign. I believe he signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641 Because he had the pen in his hand, which was resting on the paper,
though I did not actually see him sign.
Q.

1641

Explain this contradictory statement.

A.
1641 After I signed I asked permission to leave, because I was in a hurry,
and while I was leaving Julio had already taken the pen in his hand, as it appeared,
for the purpose of signing, and when I was near the door I happened to turn my face
and I saw that he had his hand with the pen resting on the will, moving it as if for the
purpose of signing.
Q.
1641 State positively whether Julio moved his hand with the pen as if for
the purpose of signing, or whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless, found the
following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as
his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as his will. They were all
together, and were in the room where Jaboneta was, and were present when he
signed the document, Isabelo Jena signing afterwards as a witness, at his request,
and in his presence and in the presence of the other two witnesses. Aniceto
Jalbuena then signed as a witness in the presence of the testator, and in the
presence of the other two persons who signed as witnesses. At that moment Isabelo
Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the
house Julio Javellana took the pen in his hand and put himself in position to sign the
will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature of
Javellana was not signed in the presence of Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when he
saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken
together with the testimony of the remaining witnesses which shows that Javellana did in fact

there and then sign his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that his back was turned
while a portion of the name of the witness was being written, is of no importance. He, with
the other witnesses and the testator, had assembled for the purpose of executing the
testament, and were together in the same room for that purpose, and at the moment when
the witness Javellana signed the document he was actually and physically present and in
such position with relation to Javellana that he could see everything which took place by
merely casting his eyes in the proper direction, and without any physical obstruction to
prevent his doing so, therefore we are of opinion that the document was in fact signed before
he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence of the identity of the
instrument subscribed by the witness and himself, and the generally accepted tests
of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol.
30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses
are together for the purpose of witnessing the execution of the will, and in a position to
actually see the testator write, if they choose to do so; and there are many cases which lay
down the rule that the true test of vision is not whether the testator actually saw the witness
sign, but whether he might have seen him sign, considering his mental and physical
condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator
and the witnesses are equally applicable in determining whether the witnesses signed the
instrument in the presence of each other, as required by the statute, and applying them to
the facts proven in these proceedings we are of opinion that the statutory requisites as to the
execution of the instrument were complied with, and that the lower court erred in denying
probate to the will on the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these
proceedings was satisfactorily proven to be the last will and testament of Macario Jaboneta,
deceased, and that it should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after
twenty days the record will be returned to the court form whence it came, where the proper
orders will be entered in conformance herewith. So ordered.