ESTATE OF THE DECEASED SALOME AVILA. VICENTE ALDANESE, PETITIONER AND APPELLANT, VS. CANUTO SALUTILLO ET AL., OBJECTORS AND APPELLEES.

This is an appeal from an order of the Court of First Instance of Cebu
denying the probate of a document alleged to be the last will and
testament of the deceased Salome Avila.

It appears from the
record that the deceased, a widow and a resident of the municipality of
Sibonga, Province of Cebu, died on May 4, 1924, in the municipality of
San Juan del Monte, Province of Rizal. The will is dated May 3, 1924,
appears to be executed in due form and is witnessed by R. M. de Moreta,
Jose U. Borromeo and Estanislao Rafols, all residents of the City of
Manila. The deceased left no ascendants or descendants and under the
dispositions of the will the greater part of the estate will go to the
petitioner Vicente Aldanese and his sister Enriqueta.

The
petition for the probate of the will was presented to the Court of
First Instance of Cebu on May 22, 1924, and was by order of the court
set down for hearing on June 21, 1924. After due publication of the
order Canuto, Teodora, Feliciano and Raymundo Salutillo and Valeria
Llanos appeared as opponents on June 11, 1924, and asked that the
hearing of the case be continued until July 14, 1924. In the meantime
on June 13, 1924, the petitioner presented a motion asking the court to
authorize the taking of the depositions of the witnesses to the will on
the ground that being residents of the City of Manila said witnesses
were unable to appear personally before the Court of First Instance of
Cebu. In an order of the same date Auxiliary Judge Recto granted the
motion and at the same time continued the hearing of the petition for
the probate of the will until July 14, 1924. On the same day upon which
the petitioner presented his motion for authorization to take the
depositions aforementioned, the opponents filed the following amended
opposition:

“Come now the opponents, Canuto
Salutillo, Teodora Salutillo, Feliciano Salutillo, Raymundo Salutillo
and Valeriana Llanos, by the undersigned attorneys and respectfully
show to the Court the following:

“1. That Salome Avila died
in the municipality of San Juan del Monte, Province of Rizal, in the
Philippine Islands, on or about May 4, 1924.

“2. That the said Salome Avila left no ascendants or descendants.

“3. That the aforementioned opponents are the nearest surviving
relatives of the said Salome Avila and are her heirs at law and are
entitled to succeed to the estate left by her.

“4. That
said opponents oppose the probate of the document purporting to be the
last will and testament of the said Salome Avila on the following
grounds:

“(a) That said will was not executed and attested as by law provided:

“(b) That the testatrix was mentally incapable of the execution of such an instrument at the time of its execution.

“(c)
That it was procured by undue and improper pressure and influence, on
the part of the beneficiaries, or some other person for their benefit.

“(d) That it was procured through fraud and deception.

“Wherefore, the opponents pray that said will be disallowed.

“Cebu, Cebu, June 14, 1924.

	“JAKOSALEM, GULLAS, BRIONES &
		CABAHUG, ROQUE DESQUITADO Y
	JOSE DELGADO, AND MCVEAN & VICKERS
		“By (Fdo.) J. C. VICKERS
			“Attorneys for the opponents”

On
June 19, 1924, the opponents presented a motion asking that the order
authorizing the taking of the depositions be revoked. The court, Judge
Wislizenus presiding, granted the motion and on July 11, 1924, revoked
the order in question on the ground that it had not been sufficiently
shown that it was impossible for the witnesses to appear personally
before the court and that therefore their depositions would be
inadmissible in evidence. The notification of this order was not
received by the attorney for the petitioner until July 18, 1924.

By agreement between the parties the hearing of the petition for
probate of the will was further continued until August 22, 1924. In the
meantime on July 1, 1924, the attorney for the petitioner notified the
attorneys for the opponents that the depositions of the witnesses would
be taken on July 14, 1924, at nine o’clock before the notary public
Jose Batungbacal at his office in room 215 of the Roxas Building,
Manila. This notification was received by the attorneys for the
opponents on the fifth day of the same month. The depositions of all
three witnesses were taken at the time and place stated in the
notification, the opponents failing to appear.

The petition
for probate was finally heard on August 22, 1924. The depositions were
duly presented but were ruled out by the court on the ground stated in
its order of July 11th and there being no other sufficient evidence of
the execution of the will, the petition was denied and this appeal
brought.

In our opinion the court below erred in holding
that the depositions in question were inadmissible in evidence in the
probate proceedings. It is true that the rule prevailing in this
jurisdiction is that when a will is contested the attesting witnesses
must be called to prove the will or a showing must be made that they
cannot be had, but that does not necessarily mean that they must be
brought bodily before the court. It is their testimony which is needed
and not their actual personal presence in the court room. As far as we
can see, there is nothing in the leading case, Cabang vs.
Delfinado (34 Phil., 291), cited by the appellees, to justify a
different conclusion; in that case no effect was made to produce the
testimony of the two subscribing witnesses though their abode was known
to the proponent of the will.

The Code of Civil Procedure
seems very clear upon the subject. Its section 274 provides that “the
rules of evidence shall be the same in all courts of the Islands, and
upon every trial, unless otherwise expressly provided by statute.”
Section 355 reads in part as follows:

“The
testimony of a witness in the Philippine Islands may be taken by
deposition, in an action, any time after the service of the summons or
the appearance of the defendant, and, in a special proceeding, after the question of fact has arisen therein, in the following cases:

* * * * * *

“2. When the witness resides out of the province in which his testimony is to be used.”

Section 361 reads:

“Either
party may have the deposition taken of a witness in the Philippine
Islands, in either of the cases mentioned in section three hundred and
fifty-five, before any judge, justice of the peace, or notary public,
on serving on the adverse party previous notice of the time and place
of examination, together with a copy of an affidavit showing that the
case is within section three hundred and fifty-five. Such notice must
be served at least two days before the time is fixed for taking the
deposition, and must in all cases give the party reasonable time after
notice to be present at the taking thereof, and without a notice of
such reasonable length of time the deposition shall not be admissible
in evidence. The court shall determine, if the deposition is offered in
evidence, whether a reasonable notice of taking has been given.”

Section 406 of the same Code reads:

“A
witness is not obliged to attend as a witness in a civil action before
any court, judge, justice, or other officer out of the province in
which he resides, unless the distance be less than thirty miles from
his place of residence to the place of trial by the usual course of
travel, but his testimony may be taken in such case in the form of a
deposition.”

In the present case, the will
was presented for probate in Cebu; the attesting witnesses were living
in Manila and were beyond the process of the court for compulsory
attendance. They were called to testify and produced before an officer
legally authorized to take their testimony in the form of depositions.
The notice required by section 361, supra, was duly given and
the opponents given the opportunity to be present and to cross-examine
the witnesses. In the circumstances, this must certainly be considered
a sufficient “calling” of the witnesses and satisfies the law.

The depositions in question appear to be in due form and would
ordinarily be admissible, but the record indicates that the failure of
the opponents to be represented at the examination of the witnesses was
due to the fact that they were misled by the petitioner’s action in
seeking special authorization from the court for the taking of the
depositions. In the interest of justice we therefore think that the
depositions should be retaken and the opponents given another
opportunity to examine the witnesses.

In the second
assignment of error the appellant maintains that the court below erred
in excluding the testimony of the photographer Luis G. Calderon in
regard to the identity of a photographic copy of the will, which copy
had been used in connection with the taking of the aforementioned
depositions. It is well settled that when depositions of subscribing
witnesses to a will are taken, a photographic copy of the will may be
presented to the witnesses on their examination and that they may be
asked the same questions with respect to it as if it were the original
will. It follows that if the depositions are admitted the testimony as
to the identity of the photographic copy shown to the witnesses is also
admissible.

The order appealed from is reversed and the case
remanded to the court below for further proceedings in accordance with
the indications hereinbefore given. No costs will be allowed in this
instance. So ordered.

Johnson, Malcolm, Villamor, Johns, and Romualdez, JJ., concur.