January 19, 1906

G.R. No. 1641

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.

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.