Nera v. Rimando Digest

Nera v. Rimando 

G.R. L-5971 February 27, 1911

Ponente: Carson, J.:

'Test of Presence'

Facts:

1. At the time the will was executed, in a large room connecting with a smaller room by a doorway where a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to the position of the witness as of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses  was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures.

HELD: YES

The Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when the testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms. 

The position of the parties must be such that with relation to each other at the moment of the attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw each other sign but whether they might have seen each other sign if they chose to doso considering their physical, mental condition and position in relation to each other at the moment of the inscription of the signature.