Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4888 May 25, 1953
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.
Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.
TUAZON , J .:
This is an appeal from the Court of Appeals which affirmed an order of the Court of First
Instance of Zambales denying the probate of the last will and testament and
so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix
was survived by the husband and collateral relatives, some of whom, along with the husband,
were disinherited in Exhibit B for the reasons set forth therein.
The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written
in the local dialect known to the testatrix, the attestation clause, as translated into English in the
record on appeal, reads:
The foregoing instrument consisting of three pages, on the date above-mentioned, was
executed, signed and published by testatrix Pilar Montealegre and she declared that the
said instrument is her last will and testament; that in our presence and also in the very
presence of the said testatrix as likewise in the presence of two witnesses and the testatrix
each of us three witnesses signed this a testament.
The opponent objected that this clause did not estate that the tetratrix and the witnesses had
signed each and every page of the will or that she had signed the instrument in the presence of
the witnesses. The Appellate Court dismissed the first objection, finding that "failure to estate in
the attestation clause in question that the testatrix and/or the witnesses had signed each and every
page of Exhibit A were cured by the fact that each one of the page of the instrument appears to
be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152,
(1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl.
(October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But granting the
correctness of the premise, the court held the second objection well taken and thus concluded:
"The question whether the testatrix had signed in the presence of said witnesses can not be
verified upon physical examination of the instrument. Hence, the absence of the require
statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by
proof aliunde even if admitted without any objection."
The premise of the conclusion is, in our opinion, incorrect.
It must be admitted that the attestation clause was very poor drawn, its language exceedingly
ungrammatical to the point of being difficult to understand; but from a close examination of the
whole context in relation to its purpose the implication seems clear that the testatrix signed in the
presence of the witnesses. Considering that the witnesses' only business at hand was to sign and
attest to the testatrix's signing of the document, and that the only actors of the proceeding were
the maker and the witnesses acting and speaking collectively and in the first person, the phrase
"in our presence," used as it was in connection with the process of signing, can not imply
anything but the testatrix signed before them. No other inference is possible. The prepositional
phrase "in our presence" denotes an active verb and the verb a subject. The verb could not be
other than signed and the subject no other than the testatrix.
The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses sign
in the presence of the testatrix and of one another, so the testatrix sign in similar or like manner
in their presence.
In consonance with the principle of the liberal interpretation, adhered to in numerous later
decision of this Court and affirmed and translated into inactment in the new Civil Code (Article
827), we are constrained to hold the attestation clause under consideration sufficient and valid.
"Precision of language in the drafting of the attestation clause is desirable. However, it is not
imperative that a parrot-like copy of the word of the statue be made. It is sufficient if from the
language employed it can reasonably be deduced that the attestation clause fulfills what the law
expects of it." (Ticson vs. Gorostiza, supra.)
"It could have been the intention of the legislature in providing for the essential safeguards in the
execution of a will to shackle the very right of the testamentary disposition which the law
recognizes and holds sacred." (Leynesvs. Leynes, supra.)
With reference of Exhibit B the Court of Appeal agreed with the trial court that the document
having been executed one day before Exhibit A could not be considered as a codicil "because a
codicil, as the word implies, is only an addition to, or modification of, the will." The Court of
Appeals added that "the content of Exhibit B are couched in the language of ordinarily used in a
simple affidavit and as such, may not have the legal effect and force to a testamentary
disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in
any instrument other than the will of Exhibit A, as expressly provided for in article 849 of the
Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro
Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be
disinherited in any other instrument including Exhibit B, which is, as above stated, a simple
affidavit."
Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil code of
Spain as "the act by which a persons dispose of all his property or a portion of it," and in article
783 of the new Civil Code as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate, to take effect after
his death. Exhibit B comes within this definition.
Being of testamentary character and having been made with all the formalities of law, Exhibit B
is entitled to probate as an independent testementary desposition. In the absence of any legal
provision to the contrary and there is none in this jurisdiction it is the general, well-
established rule that two separate and distinct wills may be probated if one does not revoke the
other (68 C.J., 885) and provided that the statutory requirements relative to the execution of wills
have been complied with (Id. 881). As seen, Exhibit B embodied all the requisites of a will, even
free of such formal of literary imperfections as are found in Exhibit A.
It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from
testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed
decision seems to insinuate, require that the disinheritance should be accomplished in the same
instrument by which the maker provides the disposition of his or her property after his or death.
This article merely provides that "disinheritance can be affected only by a will (any will) in
which the legal cause upon which it is based is expressly stated."
It is our judgment therefore that the instruments Exhibit A and B admitted to probate, subject of
courts to the right of the disinherited person under particle 850 to contest the disinheritance, and
it is so ordered, with costs against the appellee.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.

SARMIENTO, J .:
This case is a chapter in an earlier suit decided by this Court
1
involving the probate of the two
wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10,
1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we
upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with
her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate
court to sell certain shares of stock and real properties belonging to the estate to cover allegedly
his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were
personal funds. As found by the Court of Appeals,
2
the alleged advances consisted of
P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and
P90,749.99 as "increment thereto."
3
According to Mr. Vitug, he withdrew the sums of
P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America,
Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of
the estate, and hence, there was allegedly no ground for reimbursement. She also sought his
ouster for failure to include the sums in question for inventory and for "concealment of funds
belonging to the estate."
4

Vitug insists that the said funds are his exclusive property having acquired the same through a
survivorship agreement executed with his late wife and the bank on June 19, 1970. The
agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK in our joint savings current
account shall be the property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death of either or any of us
shall belong to and be the sole property of the survivor or survivors, and shall be payable to and
collectible or withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either, any or all of us
during our lifetime, or the receipt or check of the survivor or survivors, for any payment or
withdrawal made for our above-mentioned account shall be valid and sufficient release and
discharge of the BANK for such payment or withdrawal.
5

The trial courts
6
upheld the validity of this agreement and granted "the motion to sell some of
the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of
Romarico Vitug in the total sum of P667,731.66 ... ."
7

On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private
respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis
causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of
the Civil Code,"
8
and secondly, assuming that it is a mere donation inter vivos, it is a prohibited
donation under the provisions of Article 133 of the Civil Code.
9

The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is
hereby set aside insofar as it granted private respondent's motion to sell certain properties of the
estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same
order is sustained in all other respects. In addition, respondent Judge is directed to include
provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati,
in the inventory of actual properties possessed by the spouses at the time of the decedent's death.
With costs against private respondent.
10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of
our decisions inRivera v. People's Bank and Trust Co.
11
and Macam v. Gatmaitan
12
in which
we sustained the validity of "survivorship agreements" and considering them as aleatory
contracts.
13

The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should be embodied in
a will. A will has been defined as "a personal, solemn, revocable and free act by which a
capacitated person disposes of his property and rights and declares or complies with duties to
take effect after his death."
14
In other words, the bequest or device must pertain to the
testator.
15
In this case, the monies subject of savings account No. 35342-038 were in the nature
of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co.,
16
we rejected
claims that a survivorship agreement purports to deliver one party's separate properties in favor
of the other, but simply, their joint holdings:
... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive
owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that
the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera
"served only as housemaid of the deceased." But it not infrequently happens that a person deposits
money in the bank in the name of another; and in the instant case it also appears that Ana Rivera
served her master for about nineteen years without actually receiving her salary from him. The fact
that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera
and executed with the latter the survivorship agreement in question although there was no relation
of kinship between them but only that of master and servant, nullifies the assumption that
Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to
the contrary, we must give full faith and credit to the certificate of deposit which recites in effect
that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and
several) owners thereof; and that either of them could withdraw any part or the whole of said
account during the lifetime of both, and the balance, if any, upon the death of either, belonged to
the survivor.
17

In Macam v. Gatmaitan,
18
it was held:
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article
1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to give or do in case of the occurrence
of an event which is uncertain or will happen at an indeterminate time. As already stated,
Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture.
By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first,
and Leonarda would become the owner of the automobile and the furniture if Juana were to die
first. In this manner Leonarda and Juana reciprocally assigned their respective property to one
another conditioned upon who might die first, the time of death determining the event upon which
the acquisition of such right by the one or the other depended. This contract, as any other contract,
is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter
thereupon acquired the ownership of the house, in the same manner as Leonarda would have
acquired the ownership of the automobile and of the furniture if Juana had died first.
19

There is no showing that the funds exclusively belonged to one party, and hence it must be
presumed to be conjugal, having been acquired during the existence of the marita. relations.
20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was
to take effect after the death of one party. Secondly, it is not a donation between the spouses
because it involved no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification petition of the conjugal
partnership, as held by the Court of Appeals,
21
by "mere stipulation"
22
and that it is no
"cloak"
23
to circumvent the law on conjugal property relations. Certainly, the spouses are not
prohibited by law to invest conjugal property, say, by way of a joint and several bank account,
more commonly denominated in banking parlance as an "and/or" account. In the case at bar,
when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully
belonged to them in a money-making venture. They did not dispose of it in favor of the other,
which would have arguably been sanctionable as a prohibited donation. And since the funds
were conjugal, it can not be said that one spouse could have pressured the other in placing his or
her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in
reality, that contract imposed a mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code.
24

Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind
themselves to give or to do something in consideration of what the other shall
give or do upon the happening of an event which is uncertain, or which is to occur
at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the
happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time."
A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value
of currency, and insurance have been held to fall under the first category, while a contract for life
annuity or pension under Article 2021, et sequentia, has been categorized under the second.
25
In
either case, the element of risk is present. In the case at bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
But although the survivorship agreement is per se not contrary to law its operation
or effect may be violative of the law. For instance, if it be shown in a given case
that such agreement is a mere cloak to hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat the legitime of a forced heir, it may be
assailed and annulled upon such grounds. No such vice has been imputed and
established against the agreement involved in this case.
26

There is no demonstration here that the survivorship agreement had been executed for such
unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills,
donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the
latter has acquired upon her death a vested right over the amounts under savings account No.
35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the
inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate
property of petitioner, it forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its
resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J .:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a
document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the
City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he
was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he
left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead, testified without
contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote
out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he
(testator) signed on he left hand margin of the front page of each of the three folios or sheets of
which the document is composed, and numbered the same with Arabic numerals, and finally
signed his name at the end of his writing at the last page, all this, in the presence of the three
attesting witnesses after telling that it was his last will and that the said three witnesses signed
their names on the last page after the attestation clause in his presence and in the presence of
each other. The oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still, because at the time of the
hearing and when the case was to be decided the new Civil Code was already in force, which
Code permitted the execution of holographic wills, under a liberal view, and to carry out the
intention of the testator which according to the trial court is the controlling factor and may
override any defect in form, said trial court by order dated January 24, 1952, admitted to probate
Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are
appealing from that decision; and because only questions of law are involved in the appeal, the
case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator
himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was
executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were
not permitted, and the law at the time imposed certain requirements for the execution of wills,
such as numbering correlatively each page (not folio or sheet) in letters and signing on the left
hand margin by the testator and by the three attesting witnesses, requirements which were not
complied with in Exhibit "A" because the back pages of the first two folios of the will were not
signed by any one, not even by the testator and were not numbered, and as to the three front
pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand
margin of every page, said:
. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three pages
having been written on, the authenticity of all three of them should be guaranteed by the
signature of the alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court
declared:
From an examination of the document in question, it appears that the left margins of the
six pages of the document are signed only by Ventura Prieto. The noncompliance with
section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator
at the left margin of each of the five pages of the document alleged to be the will of
Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new
Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked
by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil
Code expressly provides: "The validity of a will as to its form depends upon the observance of
the law in force at the time it is made." The above provision is but an expression or statement of
the weight of authority to the affect that the validity of a will is to be judged not by the law
enforce at the time of the testator's death or at the time the supposed will is presented in court for
probate or when the petition is decided by the court but at the time the instrument was executed.
One reason in support of the rule is that although the will operates upon and after the death of the
testator, the wishes of the testator about the disposition of his estate among his heirs and among
the legatees is given solemn expression at the time the will is executed, and in reality, the legacy
or bequest then becomes a
completed
act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23.
It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and
controlling factor and that all adequate remedies and interpretations should be resorted to in
order to carry out said intention, and that when statutes passed after the execution of the will and
after the death of the testator lessen the formalities required by law for the execution of wills,
said subsequent statutes should be applied so as to validate wills defectively executed according
to the law in force at the time of execution. However, we should not forget that from the day of
the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes
a vested right, protected under the due process clause of the constitution against a subsequent
change in the statute adding new legal requirements of execution of wills which would invalidate
such a will. By parity of reasoning, when one executes a will which is invalid for failure to
observe and follow the legal requirements at the time of its execution then upon his death he
should be regarded and declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal requirements or which dispenses
with such requirements as to execution should be allowed to validate a defective will and thereby
divest the heirs of their vested rights in the estate by intestate succession. The general rule is that
the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate.
With costs.
Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion
and Reyes J.B.L., JJ., concur.