Art. 805 | Succession, Test of Presence
Provision:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Ponente:
Carson J.,
Petitioners: Beatriz Nera, et.al.
Respondents: Narcisa Remando
Recit Version:
During the signing of Pedro Rimando's will, one witness was outside in a larger room separated by a curtain, making it impossible to see the signing. The main issue is whether the location of subscribing witness, specifically whether he was in the same room or outside, affects the validity of the execution of the will.
The court ruled that the true test of presence is whether the witnesses could have seen each other sign, not whether they actually did. Extending the doctrine further would open the possibility of fraud and undermine the purpose of the legal requirement for witnesses to be present during the execution of a will.
Facts:
At the moment when the will of Pedro Rimando was being signed in the small room, one of the witnesses was outside δΈ in a larger room, about eight to ten feet away.
There was a curtain hanging across the doorway connecting the two rooms, 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.
The trial judge upheld the validity of the will in accordance with the case of Jaboneta vs. Gustilo where 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.
Issue:
WoN the location of subscribing witness, specifically whether he was in the same room or outside, affects the validity of the execution of the will. NO
Held:
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.
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