G.R. No.
82027 March 29, 1990 sums in question for inventory and for "concealment of funds
ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF
APPEALS and ROWENA FAUSTINO-CORONA, respondents.
This case is a chapter in an earlier suit decided by this Court
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the ground that the same funds withdrawn from savings account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
belonging to the estate."
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.
The trial courts 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."
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.
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.
In his petition, Vitug, the surviving spouse, assails the appellate
court's ruling on the strength of our decisions in Rivera 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.
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:
xxx xxx xxx
... 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.
In Macam v. Gatmaitan, 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.
xxx xxx xxx
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 The conclusion is accordingly unavoidable that Mrs. Vitug having
contract depends on either the happening of an event which is (1) predeceased her husband, the latter has acquired upon her death a
"uncertain," (2) "which is to occur at an indeterminate time." A vested right over the amounts under savings account No. 35342-038
survivorship agreement, the sale of a sweepstake ticket, a of the Bank of America. Insofar as the respondent court ordered
transaction stipulating on the value of currency, and insurance have their inclusion in the inventory of assets left by Mrs. Vitug, we hold
been held to fall under the first category, while a contract for life that the court was in error. Being the separate property of
annuity or pension under Article 2021, et sequentia, has been petitioner, it forms no more part of the estate of the deceased.
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 WHEREFORE, the decision of the respondent appellate court, dated
and survivorship of the other. June 29, 1987, and its resolution, dated February 9, 1988, are SET
ASIDE.
However, as we have warned:
No costs.
xxx xxx xxx
SO ORDERED.
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.

xxx xxx xxx

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.
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P.
HONRADO of the Court of First Instance of Rizal, Pasig Branch 25
and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is void because
it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by
the notary himself?
That question arises under the pleadings filed in the testate case
and in the certiorari case in the Court of Appeals which reveal the
following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p.
148, Rollo of Testate Case showing that Agapito was 5 years old
when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her
death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He
was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding
No. 1807 of the Court of First Instance of Rizal, Pasig Branch I.
In that connection, it should be noted that a woman named Arsenia
de la Cruz wanted also to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living separately from
Agapito and that she (Nenita) admitted to Marcelina that she was
unfaithful to Agapito (pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California.
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina
Salvador Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter. Marilyn used the surname
Suroza. She stayed with Marcelina but was not legally adopted by
Agapito. She married Oscar Medrano and is residing at 7666 J.B.
Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23,
1973, when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39,
CA Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374
San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square
meter lot and house in that place. She acquired the lot in 1966.
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of
Marcelina (P. 97, CA Rollo) and the executrix in her will (the
alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal,
Pasig Branch 25, a petition for the probate of Marcelina's alleged
will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his
deputy clerk of court, Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes taken at the hearing
before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina
as administratrix. On the following day, April 1, Judge Honrado
issued two orders directing the Merchants Banking Corporation and
the Bank of America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S. Suroza and
Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants of
the testatrix's house, among whom was Nenita V. Suroza, and to
place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the
other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting
them. They alleged that the decedent's son Agapito was the sole
heir of the deceased, that he has a daughter named Lilia, that
Nenita was Agapito's guardian and that Marilyn was not Agapito's
daughter nor the decedent's granddaughter (pp. 52-68, Record of
testate case). Later, they questioned the probate court's jurisdiction
to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to
set aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina,
that the will was not duly executed and attested, that it was
procured by means of undue influence employed by Marina and
Marilyn and that the thumbmarks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not
qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed
on April 18) and her omnibus motion to set aside the proceedings
(filed on April 24), Nenita filed the next day, April 25, an opposition
to the probate of the will and a counter-petition for letters of
administration. In that opposition, Nenita assailed the due
execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
Record). Nenita was not aware of the decree of probate dated April
23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never
executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the
proceedings admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la
Cruz and that Agapito was not Marcelina's son but merely an anak-
anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration
because of the non-appearance of her counsel at the hearing. She
moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all
pending incidents, Nenita V. Suroza reiterated her contention that
the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to
her.
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the
wig, Nenita "filed a case to annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting
that the executrix had delivered the estate to Marilyn, and that the
estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado with having
probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown
by the fact that she affixed her thumbmark to the will and that she
did not know English, the language in which the win was written. (In
the decree of probate Judge Honrado did not make any finding that
the will was written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did
not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado
and informed him that the testatrix did not know the executrix
Marina Paje, that the beneficiary's real name is Marilyn Sy and that
she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in
allowing Marina and her cohorts to withdraw from various banks
the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court,
for not giving her access to the record of the probate case by
alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos,
the case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix
because she (Nenita) had no rights thereto and, should she persist,
she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with
the allegations of the complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with
Nenita and that the latter did not mention Evangeline in her letter
dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she
(Evangeline) prevented Nenita from having access to the record of
the testamentary proceeding. Evangeline was not the custodian of
the record. Evangeline " strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said that the sum of ten
thousand pesos was needed in order that Nenita could get a
favorable decision. Evangeline also denied that she has any
knowledge of Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to
attention of this Court in the Court Administrator's memorandum of
September 25, 1980. The case was referred to Justice Juan A. Sison
of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she
prayed that the will, the decree of probate and all the proceedings
in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino,
who notarized the will. He swore that the testatrix and the three
attesting witnesses did not appear before him and that he notarized
the will "just to accommodate a brother lawyer on the condition"
that said lawyer would bring to the notary the testatrix and the
witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's
remedy was an appeal and her failure to do so did not entitle her to
resort to the special civil action of certiorari (Suroza vs. Honrado,
CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17,
1981 a motion to dismiss the administrative case for having
allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might
have resulted in a miscarriage of justice because the decedent's
legal heirs and not the instituted heiress in the void win should have
inherited the decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable
negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67,
Judiciary Law). Misconduct implies malice or a wrongful intent, not
a mere error of judgment. "For serious misconduct to exist, there
must be reliable evidence showing that the judicial acts complained
of were corrupt or inspired by an intention to violate the law, or
were in persistent disregard of well-known legal rules.”
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any
public service.
In this case, respondent judge, on perusing the will and noting that
it was written in English and was thumbmarked by an obviously
illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil
Code that every will must be executed in a language or dialect
known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs.
Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause
and notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also
that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy
clerk of court, respondent judge could have noticed that the notary
was not presented as a witness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of
duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of
Marcelina S. Suroza, a fine equivalent to his salary for one month is
imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).

The case against respondent Yuipco has become moot and

academic because she is no longer employed in the judiciary. Since
September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm
Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.