The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the  subscribing witnesses was present in the small room where it was executed at the time when  the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some  eight  or ten feet away,  in  a  large room connecting with the smaller room by a doorway, across which was hung a curtain  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.

A majority of the members  of the court is  of  opinion that this subscribing witness was in  the small  room with the testator and the other subscribing witnesses at the time when they  attached their signatures to the  instrument, and this  finding,  of course, disposes of the  appeal  and necessitates the  affirmance of the decree admitting the document to probate  as the last will and testament of the deceased.

The trial judge does not  appear to have considered the determination of this question of fact of vital importance in the determination of this  case, as he was of opinion that under the  doctrine laid down in the  case  of Jaboneta vs. Gustilo  (5 Phil.  Rep., 541)  the alleged fact that 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, had  it been proven, would not be  sufficient in itself to invalidate the execution of the will. But 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 such 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 room 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 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.

Arellano, C. J., Mapa, Moreland, and Trent,  JJ,, concur.