Aldanese - v - Salutillo

[G.R. No. 23061. March 6, 1925. ] (Estate of the deceased Salome Avila. VICENTE ALDANESE, Petitioner-Appellant, v. CANUTO SALUTILLO ET AL., objectors-appellees. OSTRAND, J.)

Facts:
1.       The deceased’s will 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.
2.       She 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. 
3.       The petition for the probate of the will was presented to the Court of First Instance of Cebu and was by order of the court set down for hearing.
4.       After due publication of the order Canuto, Teodora, Feliciano and Raymundo Salutillo and Valeria Llanos appeared as opponents.
5.       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 Auxiliary Judge Recto granted the motion.
6.       Opponents presented a motion asking that the order authorizing the taking of the depositions be revoked. Judge Wislizenus granted the motion 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.
7.       The petition for probate was finally heard. The deposition were duly presented but were ruled out by the court.

Issue: Whether or not court below erred in holding that the depositions in question were inadmissible in evidence in the probate proceedings. Held: Yes

Ruling:
-          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.
-          The Code of Civil Procedure seems very clear upon the subject.
*Relevant laws (paraphrased)*
Section 355: The testimony of a witness may be taken by deposition in a special proceeding after the question of fact as arisen when the witness resides out of the province in which his testimony is to be used.
Section 361: Either party may have the deposition taken of a witness 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 355. 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, otherwise shall not be admissible in evidence.
Section 406: 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 30 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."
-          The attesting witnesses were living in Manila and were beyond the process of the CFI Cebu for compulsory attendance.
-          The notice required by section 361 was duly given and the opponents given the opportunity to be present and to cross-examine the witnesses.
-          BUT 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 taking of the depositions. THUS in the interest of justice, Court thinks that deposition should be retaken and the opponents be given another opportunity to examine the witnesses. 

Evidence: As to the exclusion of 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 depositions à 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.
-          If the depositions are admitted the testimony as to the identity of the photographic copy shown to the witnesses is also admissible. 
-          Case remanded to the court below for further proceedings.

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