NERA v.

RIMANDO
G.R. No. L-5971 February 27, 1911

DOCTRINE: 18 Phil. 450

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. 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.

FACTS:
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.
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.

ISSUE:
Whether or not the notarial will is void for the failure of the instrumental witnesses to see each other sign.
RULING:

NO. The phrase “in the presence” required by law simply means that 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. 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.

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.

[*]
[*Test of presence: you need not be there but by casting your eyes to the right direction, you will see them signing, there being no obstruction
in your line of vision. In this case, there is an obstruction: the curtain. Yet the court allowed the will to probate. The court believed the
testimony that the guy was in fact inside.
Why are the witnesses not required to know the language of the attestation clause? It is the testator’s interest that is protected. It is the
testator who chooses the witnesses because he trusts them. This is intended to give the testator a chance to choose the people who he wants
to be his witness. The interest of the testator is not really compromised because (1) he is the one who chose the witnesses; (2) he chose them
knowing that they didn’t know the language of the will. It is more important that the testator choose witnesses he trusts than for him to choose
witnesses who understand the language used in the will. This is a leeway allowing the testator to choose the people he trusts who may not
know the language of the attestation clause.*]