EN BANC
G.R. No. 1641 January
19, 1906
GERMAN JABONETA, Plaintiff-Appellant , vs. RICARDO GUSTILO,
ET AL., Defendants-Appellees.
CARSON, J.: chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
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? chanrobles
virtual law library
A. 1641 I signed it first, and afterwards Aniceto
and the others.chanroblesvirtualawlibrary chanrobles virtual law library
Q. 1641 Who were those others to whom you have
just referred? chanrobles virtual law library
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.
. . .chanroblesvirtualawlibrary chanrobles virtual law library
Q. 1641 State positively whether Julio Javellana
did or did not sign as a witness to the will.chanroblesvirtualawlibrary
chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
Q. 1641 Why do you believe Julio Javellana signed?
chanrobles virtual law library
A. 1641 Because he had the pen in his hand, which
was resting on the paper, though I did not actually see him
sign.chanroblesvirtualawlibrary chanrobles virtual law library
Q. 1641 Explain this contradictory
statement.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
Q. 1641 State positively whether Julio moved his
hand with the pen as if for the purpose of signing, or whether he was signing
chanrobles virtual law library
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:chanrobles virtual law library
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.)chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual
law library
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.chanroblesvirtualawlibrary chanrobles
virtual law library
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
