A notarial will was executed in a small room. At the moment when the witness Javellana signed the document, Jaboneta was outside, some eight or ten feet away but 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.
Whether or not the notarial will is void for the failure of the instrumental witnesses to see each other sign.
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.