Nera v. Rimando, G.R. No. L-5971, (February 27, 1911), 18 PHIL 450-453)

BEATRIZ NERA, ET AL. vs .
NARCISA RIMANDO
EN BANC
[G.R. No. L-5971. February 27, 1911.]
BEATRIZ NERA, ET AL., plaintis-appellees,
RIMANDO, defendant-appellant.
vs.
NARCISA
Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.
SYLLABUS
1.
EXECUTION OF WILLS; POSITION OF TESTATOR AND WITNESS
WHEN WILL IS SUBSCRIBED. The position of testator and of the witnesses to a
will, at the moment of the subscription by each, must be such that they may see
each other sign if they choose to do so.
2.
ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. 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 whether at that moment existing conditions
and the position of the parties, with relation to each other, were such that by
merely casting their eyes in the proper direction they could have seen each other
sign.
3.
ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS
SIGNED. If one subscribing witness to a will is shown to have been in an outer
room at the time when the testator and the other witnesses attach their
signatures to the instrument in an inner room, the will would be held invalid
the attaching of the said signatures, under such circumstances, not being done
"in the presence" of the witness in the outer room.
DECISION
CARSON, J :
p
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 nding, of course, disposes of the appeal and necessitates the armance
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 sucient 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.
Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

Nera v. Rimando, G.R. No. L-5971, (February 27, 1911), 18 PHIL 450-453)

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Nera v. Rimando, G.R. No. L-5971, (February 27, 1911), 18 PHIL 450-453)

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BEATRIZ NERA, ET AL. vs .

Valerio Fontanilla and Andres Asprer for appellant.

Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

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