Nera v.

Rimando
G.R. L-5971, February 27, 1911

Facts:
When a certain will was being signed, it was alleged that the testator and some subscribing witnesses
were in the inner room while the other subscribing witnesses were in the outer room. What separates the
inner room from the outer room was a curtain.

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. The CA affirmed the
validity of the will

Issue:
WON the will passed the true test of the presence of the testator and the witness in the execution thereof.

Held:
Yes. The Supreme Court, in this case, determined that all the parties were in the same small room when
each other signed. Hence, they were in each other’s presence (though the facts of the case didn’t
elaborate – the SC just ruled so). The SC ruled that if some of the witnesses were really in the outer room
(a fact which was not established according to the SC) separated by a curtain, then the will is invalid, the
attaching of those signatures under circumstances not being done “in the presence” of the witness in the
outer room.

The Supreme Court emphasized 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 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.

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.