German Jaboneta vs. Ricardo Gustilo, et al.G.R. No. 1641Justice Carson

DOCTRINE

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.

SPECIFIC ISSUE

Whether or not the subscribing witnesses, in compliance with Art. 805 of the New Civil Code, must actually witness (on their eyes) the signing of the instrument by the other witnesses.

HOW DID THE SC DECIDE ON THE ISSUE BASED ON THE DOCTRINE

The fact that Isabelo Jena (one of the witnesses) was still in the room when he saw Julio Javellana (another of the witnesses) 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 Julio Javellana did in fact there and then sign his name to the will, convinces the SC that the signature was affixed in the presence of Isabelo Jena. 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. 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. These principles are equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required by the statute. Applying these

to the facts of the case, SC is in the opinion that the statutory requisites as to the execution of the instrument were complied with.