THIRD DIVISION

[G.R. No. 113725. June 29, 2000]

JOHNNY S. RABADILLA, petitioner, vs. COURT OF
[1]

APPEALS AND MARIA MARLENA COSCOLUELLA Y [2]

BELLEZA VILLACARLOS, respondents.

DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of
Appeals,[3] dated December 23, 1993, in CA-G.R. No.
CV-35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the
defendants-appellees (including herein petitioner), as heirs
of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja
Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix
Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest
of the herein petitioner, Johnny S. Rabadilla, was instituted
as a devisee of 511, 855 square meters of that parcel of
land surveyed as Lot No. 1392 of the Bacolod Cadastre.
The said Codicil, which was duly probated and admitted in
Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the
following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to
Dr. Jorge Rabadilla resident of 141 P. Villanueva,
Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), which is
registered in my name according to the records of
the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall
set forth hereinbelow, shall be inherited and
acknowledged by the children and spouse of Jorge
Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that
should I die and Jorge Rabadilla shall have already
received the ownership of the said Lot No. 1392 of
the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), and also at
the time that the lease of Balbinito G. Guanzon of
the said lot shall expire, Jorge Rabadilla shall have
the obligation until he dies, every year to give to
Maria Marlina Coscolluela y Belleza, Seventy (75)
(sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria
Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot
No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492),
shall have the obligation to still give yearly, the
sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza
on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in
the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease,
mortgage this said Lot, the buyer, lessee,
mortgagee, shall have also the obligation to respect
and deliver yearly ONE HUNDRED (100) piculs of
sugar to Maria Marlina Coscolluela y Belleza, on
each month of December, SEVENTY FIVE (75)
 piculs of Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly should
the buyer, lessee or the mortgagee of this lot, not
have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir
and the latter's heirs, and shall turn it over to my
near desendants, (sic) and the latter shall then have
the obligation to give the ONE HUNDRED (100)
piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir
and his heirs of this Lot No. 1392, that they will obey
and follow that should they decide to sell, lease,
mortgage, they cannot negotiate with others than
my near descendants and my sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of
Title No. 44498 thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife
Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza
Villacarlos brought a complaint, docketed as Civil Case No.
5588, before Branch 52 of the Regional Trial Court in
Bacolod City, against the above-mentioned heirs of Dr.
Jorge Rabadilla, to enforce the provisions of subject
Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank
and the Republic Planters Bank in disregard of the
testatrix's specific instruction to sell, lease, or
mortgage only to the near descendants and sister of
the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver
one hundred (100) piculs of sugar (75 piculs export
sugar and 25 piculs domestic sugar) to plaintiff
 Maria Marlena Coscolluela y Belleza from sugar
crop years 1985 up to the filing of the complaint as
mandated by the Codicil, despite repeated demands
for compliance.
3. The banks failed to comply with the 6th paragraph of the
Codicil which provided that in case of the sale,
lease, or mortgage of the property, the buyer,
lessee, or mortgagee shall likewise have the
obligation to deliver 100 piculs of sugar per crop
year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering
defendant-heirs to reconvey/return-Lot No. 1392 to the
surviving heirs of the late Aleja Belleza, the cancellation of
TCT No. 44498 in the name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new certificate of title in
the names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in
default but on March 28, 1990 the Order of Default was
lifted, with respect to defendant Johnny S. Rabadilla, who
filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a
certain Alan Azurin, son-in-law of the herein petitioner who
was lessee of the property and acting as attorney-in-fact of
defendant-heirs, arrived at an amicable settlement and
entered into a Memorandum of Agreement on the
obligation to deliver one hundred piculs of sugar, to the
following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No.
49074 of TCT No. 44489 will be delivered not later
than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in
any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin,
during December of each sugar crop
year, in Azucar Sugar Central; and,
 this is considered compliance of the
annuity as mentioned, and in the same
manner will compliance of the annuity
be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87,
and 1987-88, will be complied in cash equivalent of
the number of piculs as mentioned therein and
which is as herein agreed upon, taking into
consideration the composite price of sugar during
each sugar crop year, which is in the total amount of
ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will be paid or delivered on a
staggered cash installment, payable on or before the end
of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of
crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of
crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of
crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of
crop year 1991-92."[5]
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial delivery of
50.80 piculs of sugar corresponding to sugar crop year
1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a
decision, dismissing the complaint and disposing as
follows:
"WHEREFORE, in the light of the aforegoing findings, the Court
finds that the action is prematurely filed as no cause
 of action against the defendants has as yet arose in
favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction
from them simply because they are the children of
Jorge Rabadilla, the title holder/owner of the lot in
question, does not warrant the filing of the present
complaint. The remedy at bar must fall. Incidentally,
being in the category as creditor of the left estate, it
is opined that plaintiff may initiate the intestate
proceedings, if only to establish the heirs of Jorge
Rabadilla and in order to give full meaning and
semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being
prematurely filed is DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of Appeals
reversed the decision of the trial court; ratiocinating and
ordering thus:
"Therefore, the evidence on record having established plaintiff-
appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392;
defendants-appellee's obligation under Aleja
Belleza's codicil, as heirs of the modal heir, Jorge
Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted
non-compliance with said obligation since 1985;
and, the punitive consequences enjoined by both
the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza
in case of such non-compliance, this Court deems it
proper to order the reconveyance of title over Lot
No. 1392 from the estates of Jorge Rabadilla to the
estate of Aleja Belleza. However, plaintiff-appellant
must institute separate proceedings to re-open Aleja
Belleza's estate, secure the appointment of an
administrator, and distribute Lot No. 1392 to Aleja
 Belleza's legal heirs in order to enforce her right,
reserved to her by the codicil, to receive her legacy
of 100 piculs of sugar per year out of the produce of
Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and
another one entered ordering defendants-appellees,
as heirs of Jorge Rabadilla, to reconvey title over
Lot No. 1392, together with its fruits and interests, to
the estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals,
petitioner found his way to this Court via the present
petition, contending that the Court of Appeals erred in
ordering the reversion of Lot 1392 to the estate of the
testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr.
Jorge Rabadilla is a modal institution within the purview of
Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving
the appeal in accordance with Article 882 of the New Civil
Code on modal institutions and in deviating from the sole
issue raised which is the absence or prematurity of the
cause of action. Petitioner maintains that Article 882 does
not find application as there was no modal institution and
the testatrix intended a mere simple substitution - i.e. the
instituted heir, Dr. Jorge Rabadilla, was to be substituted by
the testatrix's "near descendants" should the obligation to
deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and
without issue, there can be no valid substitution and such
testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no valid
substitution for the reason that the substituted heirs are not
definite, as the substituted heirs are merely referred to as
"near descendants" without a definite identity or reference
 as to who are the "near descendants" and therefore, under
Articles 843[8] and 845[9] of the New Civil Code, the
substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his
supposition that the Court of Appeals deviated from the
issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity of
cause of action, there was no such deviation. The Court of
Appeals found that the private respondent had a cause of
action against the petitioner. The disquisition made on
modal institution was, precisely, to stress that the private
respondent had a legally demandable right against the
petitioner pursuant to subject Codicil; on which issue the
Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional
rights are transmitted from the moment of death of the
decedent[10] and compulsory heirs are called to succeed by
operation of law. The legitimate children and descendants,
in relation to their legitimate parents, and the widow or
widower, are compulsory heirs.[11] Thus, the petitioner, his
mother and sisters, as compulsory heirs of the instituted
heir, Dr. Jorge Rabadilla, succeeded the latter by operation
of law, without need of further proceedings, and the
successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all
the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights
Dr. Jorge Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his death. And
since obligations not extinguished by death also form part
of the estate of the decedent; corollarily, the obligations
imposed by the Codicil on the deceased Dr. Jorge
Rabadilla, were likewise transmitted to his compulsory
heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to
Dr. Jorge Rabadilla, subject to the condition that the
usufruct thereof would be delivered to the herein private
respondent every year. Upon the death of Dr. Jorge
Rabadilla, his compulsory heirs succeeded to his rights
and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot
involved to herein private respondent. Such obligation of
the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or
performance of which is now being demanded by the latter
through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the
trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on
modal institutions is not applicable because what the
testatrix intended was a substitution - Dr. Jorge Rabadilla
was to be substituted by the testatrix's near descendants
should there be noncompliance with the obligation to
deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or
persons to take the place of the heir or heirs first instituted.
Under substitutions in general, the testator may either (1)
provide for the designation of another heir to whom the
property shall pass in case the original heir should die
before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution,[12] or (2)
leave his/her property to one person with the express
charge that it be transmitted subsequently to another or
others, as in a fideicommissary substitution.[13] The Codicil
sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in
default of the first heir by reason of incapacity, predecease
or renunciation.[14] In the case under consideration, the
provisions of subject Codicil do not provide that should Dr.
 Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr.
Jorge Rabadilla or his heirs not fulfill the conditions
imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this
point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the second
heir.[15] In the case under consideration, the instituted heir is
in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or
the sister of the testatrix. Thus, a very important element of
a fideicommissary substitution is lacking; the obligation
clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without
this obligation to preserve clearly imposed by the testator
in his will, there is no fideicommissary substitution."[16] Also,
the near descendants' right to inherit from the testatrix is
not definite. The property will only pass to them should Dr.
Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is
also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must
not be beyond one degree from the first heir or the
fiduciary. A fideicommissary substitution is therefore, void if
the first heir is not related by first degree to the second
heir.[17] In the case under scrutiny, the near descendants are
not at all related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr.
Jorge Rabadilla under subject Codicil is in the nature of a
modal institution and therefore, Article 882 of the New Civil
Code is the provision of law in point. Articles 882 and 883
of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the
application of the property left by the testator, or the
charge imposed on him, shall not be considered as
a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give
security for compliance with the wishes of the
testator and for the return of anything he or they
may receive, together with its fruits and interests, if
he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred
to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is
what is known in the law of succession as an institucion
sub modo or a modal institution. In a modal institution, the
testator states (1) the object of the institution, (2) the
purpose or application of the property left by the testator, or
(3) the charge imposed by the testator upon the heir.[18] A
"mode" imposes an obligation upon the heir or legatee but
it does not affect the efficacy of his rights to the
succession.[19] On the other hand, in a conditional
testamentary disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to succeed the
testator. The condition suspends but does not obligate; and
the mode obligates but does not suspend.[20] To some
extent, it is similar to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can be gleaned
unerringly that the testatrix intended that subject property
be inherited by Dr. Jorge Rabadilla. It is likewise clearly
worded that the testatrix imposed an obligation on the said
instituted heir and his successors-in-interest to deliver one
hundred piculs of sugar to the herein private respondent,
 Marlena Coscolluela Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Jorge
Rabadilla's inheritance and the effectivity of his institution
as a devisee, dependent on the performance of the said
obligation. It is clear, though, that should the obligation be
not complied with, the property shall be turned over to the
testatrix's near descendants. The manner of institution of
Dr. Jorge Rabadilla under subject Codicil is evidently
modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of
such institution.
Then too, since testamentary dispositions are generally acts of
liberality, an obligation imposed upon the heir should not
be considered a condition unless it clearly appears from
the Will itself that such was the intention of the testator. In
case of doubt, the institution should be considered as
modal and not conditional.[22]
Neither is there tenability in the other contention of petitioner that
the private respondent has only a right of usufruct but not
the right to seize the property itself from the instituted heir
because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the
face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained from
the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such
construction as will sustain and uphold the Will in all its
parts must be adopted.[24]
Subject Codicil provides that the instituted heir is under obligation
to deliver One Hundred (100) piculs of sugar yearly to
Marlena Belleza Coscuella. Such obligation is imposed on
the instituted heir, Dr. Jorge Rabadilla, his heirs, and their
buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The
Codicil further provides that in the event that the obligation
 to deliver the sugar is not respected, Marlena Belleza
Coscuella shall seize the property and turn it over to the
testatrix's near descendants. The non-performance of the
said obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed
by the testatrix, not only on the instituted heir but also on
his successors-in-interest, the sanction imposed by the
testatrix in case of non-fulfillment of said obligation should
equally apply to the instituted heir and his successors-in-
interest.
Similarly unsustainable is petitioner's submission that by virtue of
the amicable settlement, the said obligation imposed by the
Codicil has been assumed by the lessee, and whatever
obligation petitioner had become the obligation of the
lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation
through the consummated settlement between the lessee
and the private respondent, and having consummated a
settlement with the petitioner, the recourse of the private
respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject
property.
Suffice it to state that a Will is a personal, solemn, revocable and
free act by which a person disposes of his property, to take
effect after his death.[25] Since the Will expresses the
manner in which a person intends how his properties be
disposed, the wishes and desires of the testator must be
strictly followed. Thus, a Will cannot be the subject of a
compromise agreement which would thereby defeat the
very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the
decision of the Court of Appeals, dated December 23, 1993, in
CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to
costs
SO ORDERED.
Melo, J., (Chairman), concur in the separate opinion of Justice
Vitug.
Vitug, J., see separate opinion.
Panganiban, J., join the separate opinion of Justice Vitug.
Gonzaga-Reyes, J., no part.

[1] Was spelled interchangeably in Rollo as Ravadilla.

[2] Was spelled interchangeably in Rollo as Marlina.
[3] Penned by Justice Santiago M. Kapunan (Chairman) and concurred in by Justices

Minerva P. Gonzaga-Reyes and Eduardo G. Montenegro, (Members)

[4] Annex "C", Rollo, pp. 34-35.

[5] Rollo, pp. 65-66.

[6] RTC Decision, pp. 8-9.

[7] CA Decision, p. 14.

[8] Art. 843. The testator shall designate the heir by his name and surname, and when

there are two persons having the same names, he shall indicate some circumstance by
which the instituted heir may be known.

Even though the testator may have omitted the name of the heir, should he designate
him in such manner that there can be no doubt as to who has been instituted, the
institution shall be valid.
[9] Art. 845. Every disposition in favor of an unknown person shall be void, unless by

some event or circumstance his identity becomes certain. However, a disposition in

favor of a definite class or group of persons shall be valid.
[10] Article 777, New Civil Code.

[11] Ibid., Article 887.

[12] Ibid., Article 859.

[13] Ibid., Article 863.

[14] Ibid., Article 859.

[15] Arturo Tolentino, Commentaries and Jurisprudence on the Civil Code, Volume III, p.

212.
[16] Ibid., p. 212.

[17] Ramirez vs. Vda. De Ramos, 111 SCRA 704.

[18] Tolentino, supra, pp. 241-242.

[19] Ibid., p. 242.

[20] Ibid.

[21] Jottings and Jurisprudence in Civil Law, Ruben Balane, p. 249.

[22] Tolentino, supra, p. 242.

[23] Article 789, NCC.

[24] Tolentino, supra, p. 34.
[25] Art. 783, NCC and Tolentino, p. 28-29.

G.R. No. L-3362 March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE
GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.

Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will
and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de
Murciano appealed to this Court, raising only question of law. Her counsel
assigns the two following alleged errors:
Primer Error. — El Juzgado inferior erro al dejar de declarar que el alegado
testamento de Carlos Gil no ha sido otogar de acuerdo con la ley.
Segundo Error. — Erro finalmente a legalizar el referido testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 años de edad, residente de Porac, Pampanga, I. F.,
hallandome sano y en pleno goce de mis facultades intelectuales, libre y
expontaneamente, sin violencia, coaccion, dolo o influencia ilegal de
persona extraña, otorgo y ordeno este mi testamento y ultima voluntad en
castellano, idioma que poseo y entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel
Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la Provincia de
Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya
que muebles e inmuebles situados en Manila y en Pampanga, bajo la
condicion de que cuando esta muera y si hayan bienes remanentes
heredadas por ella de mi, que dichos bienes remanentes se adjudicaran a
Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr.
Galicano Coronel a quien tengo absoluta confianza, con relevacion de
fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el margen
izquierdo de cada una de sus dos paginas, utiles con la clausula de
atestiguamiento en presencia de los testigos, quienes a su vez firmaron
cada una de dichas paginas y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de edad, certificamos: que el
testamento que precede este escrito en la lengua castellana que conoce la
testadora, compuesto de dos paginas utiles con la clausula de
atestiguamiento paginadas correlativamente en letras y numeros en la
parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en presencia del testador y en la
de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAÑA
Regarding the correctness and accuracy of the above-copied alleged will,
the court below said:
. . . The only copy available is a printed form contained in the record appeal
in case G.R. No. L-254, entitled "Testate Estate of Carlos Gil; Isabel
Herreros Vda. de Gil, petitioner and appellant vs. Roberto Toledo y Gil,
oppositor and appellee." Both parties are agreed that this is a true and
correct copy of the will. (P. 10, Record on Appeal).
The appeal being only on questions of law the above finding of the court
below cannot be disputed. The conclusions of law reached by said court
are based on it. Moreover, the finding is correctly based on the evidence of
record. The parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that the defect is of
an essential character and is fatal to the validity of the attestation clause.
It will be noted that the attestation clause above quoted does not state that
the alleged testor signed the will. It declares only that it was signed by the
witnesses. This is a fatal defect, for the precise purpose of the attestation
clause is to certify that the testator signed the will, this being the most
essential element of the clause. Without it there is no attestation at all. It is
said that the court may correct a mere clerical error. This is too much of a
clerical error for it effects the very essence of the clause. Alleged errors
may be overlooked or correct only in matters of form which do not affect the
substance of the statement.
It is claimed that the correction may be made by inference. If we cure a
deficiency by means of inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are we to draw the
line? Following that procedure we would be making interpolations by
inferences, implication, and even by internal circumtantial evidence. This
would be done in the face of the clear, uniquivocal, language of the statute
as to how the attestation clause should be made. It is to be supposed that
the drafter of the alleged will read the clear words of the statute when he
prepared it. For the court to supply alleged deficiencies would be against
the evident policy of the law. Section 618 of Act No. 190, before it was
amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will
invalid if it proven that the will was in fact signed and attested as in this
section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1,
1916, besides increasing the contents of the attestation clause, entirely
suppressed the above-quoted provision. This would show that the purpose
of the amending act was to surround the execution of a will with greater
guarantees and solemnities. Could we, in view of this, hold that the court
can cure alleged deficiencies by inferences, implications, and internal
circumstantial evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial evidence.
It is contended that the deficiency in the attestation clause is cured by the
last paragraph of the body of the alleged will, which we have quoted above.
At first glance, it is queer that the alleged testator should have made an
attestation clause, which is the function of the witness. But the important
point is that he attests or certifies his own signature, or, to be accurate, his
signature certifies itself. It is evident that one cannot certify his own
signature, for it does not increase the evidence of its authenticity. It would
be like lifting one's self by his own bootstraps. Consequently, the last
paragraph of the will cannot cure in any way the fatal defect of the
attestation clause of the witnesses. Adding zero to an insufficient amount
does not make it sufficient.
It is said that the rules of statutory construction are applicable to documents
and wills. This is true, but said rules apply to the body of the will, containing
the testamentary provisions, but not to the attestation clause, which must
be so clear that it should not require any construction.
The parties have cited pro and con several decisions of the Supreme
Court, some of which are said to be rather strict and others liberal, in the
interpretation of section 618 of Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the
following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634
OF THE CODE OF CIVIL PROCEDURE CONSTRUED. — The right to
dispose of the property by will is governed entirely by statute. The law is
here found in section 618 of the Code of Civil Procedure, as amended. The
law not alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. — The Philippine authorities relating to the
attestation clause to wills reviewed. The cases of Saño vs. Quintana
([1925], 48 Phil., 506), and Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152), particularly compared. The decision in In re Will of Quintana, supra,
adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar,
supra, modified.
3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil
Procedure, as amended, which provides that "The attestation clause shall
state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction,
in the presence of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and of each other"
applied and enforced.
4. ID.; ID.; ID.; ID. — An attestation clause which does not recite that the
witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a defect
annuls the will. (Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge
Manuel V. Moran, now Chief Justice of the Supreme Court, in his decision
made the following pronouncement:
. . . En la clausula de atestiguamiento del testamento en cuestion, se hace
constar que los testadores firmaron el testamento en presencia de los tres
testigos instrumentales y que estos firmaron el testamento los unos en
presencia de los otros, pero no se hace constar que dichos testigos
firmaron el testamento en presencia de los testadores, ni que estos y
aquellos firmaron todas y cada una de las paginas del testamento los
primeros en presencia de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la legalizacion del
alegado testamento Exhibit A de Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision, laying down the following
doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS
OF. — The attestation clause must be made in strict conformity with the
requirements of section 618 of Act No. 190, as amended. Where said
clause fails to show on its face a full compliance with those requirements,
the defect constitutes sufficient ground for the disallowance of the will.
(Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30).
Evidence aliunde should not be admitted to establish facts not appearing
on the attestation clause, and where said evidence has been admitted it
should not be given the effect intended. (Uy Coque vs. Navas L. Sioca, 43
Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS
AMENDED. — Section 618 of Act No. 190, as amended, should be given a
strict interpretation in order to give effect to the intention of the Legislature.
Statutes prescribing formalities to be observed in the execution of wills are
very strictly construed. Courts cannot supply the defensive execution of
will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed the
doctrine of the Gumban vs. Gorcho case, supra, but not to the extent of
validating an attestation clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the
attestation clause which was complete, and it was also signed by the two
attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes the declaration about
the points contained in the above described paragraph; however, as the
witnesses, together with the testatrix, have signed the said declaration, we
are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that: . . . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was
held that:
An attestation clause to a will, copied from a form book and reading: "We,
the undersigned attesting witnesses, whose residences are stated opposite
our respective names, do hereby certify that the testatrix, whose name is
signed hereinabove, has publish unto us the foregoing will consisting of two
pages as her Last Will and Testament, and has signed the same in our
presence, and in witness whereof we have each signed the same and each
page thereof in the presence of said testatrix and in the presence of each
other," held not to be fatally defective and to conform to the law.
This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3,
May 23, 1939), the will was objected to on the ground that, although the
attestation clause stated that "each of the pages of which the said will is
composed" was signed by the testatrix at the left margin and at the foot of
the fifth page, it did not state that the signature was made in the presence
of the witnesses. It was held, however, that said deficiency was cured by
the phrase "as well as by each of us in the presence of the testatrix." The
words "as well as" indicate that the testatrix signed also in the presence of
the witnesses, for the phrase "as well as" in this case is equivalent to
"also." The language is clear and, unlike the attestation clause in the
present case, does not necessitate any correction. In the body of the will
the testatrix stated that she signed in the presence of each and all of the
three witnesses. This was considered as a corroboration, but it was
unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52,
No. 7, October 18, 1939; 68 Phil., 745), the attestation clause reads as
follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima
voluntad y testamento en presencia de todos y cada uno de nosotros, y a
ruego de dicho testador, firmamos el presente cada uno en presencia de
los otros, o de los demas y de la del mismo testsador, Valerio Leynez. El
testamento consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state that the testator
and the witnesses signed each and every page of the will. This fact ,
however, appears in the will itself. It is clear, therefore, that in case of the
will complied with all the requisites for its due execution. In the instant case,
essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131,
134-135, No. 23, April 18, 1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el
Sr. Emiliano Alcala su ultima voluntad o testamentao compuesto de cuatro
paginas incluida ya esta clasula de atestiguamiento. Que estabamos
presentes en el momento de leer y ratificar el que el testamento arriba
mencionado es su ultima voluntad o testamento compuesto de cuatro
paginasen papel de maquinilla. Que igualmente estabamos presentes
cuando el firmo este documento al pie del mismo y en el margen izquierdo
de cada pagina del testador tambien en presencia suya y de cada uno de
nosotros en cada pagina y en el margen izquierdo de esta escritura o
testamento. En su testimonio firmamos abajo en prsencia del testador y de
cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical error
is that it says "testador" instead of "testamento" in the phrase "cada pagina
del testador." The word "tambien" renders unnecessary the use of the verb
"firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27,
1941), the attestation clause did not state the number of pages of the will.
However, it was held that this deficiency was cured by the will itself, which
stated that it consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October
23, 1947), decided by the Court of Appeals, the attestation clause
(translated in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos firmado es el
testamento y ultima voluntad, que se ha redactado en cuatro paginas, de
Numeriano Rallos, quien despues de leer y de leer y de leerle el
mencionado testamento, y despues de que ella dio su conformidad, firmo y
marco con su dedo pulgar derecho en nuestra presencia y en presencia de
cada uno de nosotros, que asimismo cada uno de nosotros, los testigos,
firmamos enpresencia de la testadora y en presencia de cada uno de
nosotros.
It will be noticed that the only thing omitted is the statement as to the
signing of the testatrix and the witnesses of each and every page of the
will, but the omission is cured by the fact that their signatures appear on
every page. This attestation clause is different from that involved in the
present case.
There is no reason why wills should not be executed by complying
substantially with the clear requisites of the law, leaving it to the courts to
supply essential elements. The right to dispose of property by will is not
natural but statutory, and statutory requirements should be satisfied.
The right to make a testamentary disposition of one's property is purely of
statutory creation, and is available only upon the compliance with the
requirements of the statute. The formalities which the Legislature has
prescribed for the execution of a will are essential to its validity, and cannot
be disregarded. The mode so prescribed is the measure for the exercise of
the right, and the heir can be deprived of his inheritance only by a
compliance with this mode. For the purpose of determining whether a will
has been properly executed, the intention of the testator in executing it is
entitled to no consideration. For that purpose only intention of the
Legislature, as expressed in the language of the statute, can be considered
by the court, and whether the will as presented, shows a compliance with
the statute. Estate of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460,
52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly opposed any
exception tending to weaken the basic principle underlying the law, the
chief purpose of which is to see that the testator's wishes are observed. It
is possible, in some or many cases, a decedent may have thought he had
made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen .
. . that . . . wills . . . truly expressing the intertions of the testator are made
without observations of the required forms; and whenever that happens,
the genuine intention is frustrated. . . . The Legislature . . . has taught of it
best and has therefore determined, to run the risk of frustrating (that
intention, . . . in preference to the risk of giving effect to or facilitating the
formation of spurious wills, by the absence of forms. . . . The evil probably
to arise by giving to wills made without any form, . . ." or, in derogation of
testator's wishes, fraudulently imposing spurious wills on his effect on his
estate. Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.
It has always been the policy of this court to sustain a will if it is legally
possible to do so, but we cannot break down the legislative barriers
protecting a man's property after death, even if a situation may be
presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419,
420.)
In view of the foregoing, the decision appealed from is reversed, denying
the probate of the alleged will and declaring intestate the estate of the
deceased Carlos Gil. With costs against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions
TUAZON, J., dissenting:
The decision takes for granted that the will was written just as it was copied
in the stipulation of facts by the parties. But counsel for appellee makes the
correctness of the copy an issue thereby raising the question of not
whether the burnt will possessed the statutory requirements but whether
the copy is erroneous. Since this is a chief feature on which the appellee's
case is built; since, in fact, the objection to form of the attestation clause,
with which the decision wholly deals, would disappear if the appellee's
contention were well founded, it is proper that in this dissenting opinion we
should accord the matter at least a passing notice.
It may be stated as background that the original of the will was filed in the
Court of First Instance of Manila in 1943; that in 1945, before the will came
up for probate, it was destroyed by fire or looters; that in the probate
proceeding after liberation, the parties submitted an agreed statement of
facts in which the will was reproduced as copied in the record on appeal in
another case docketed in this court on appeal as G.R. No. L-254 and
decided on April 30, 1948. It further appears from the record of that case
and from the decision of this court that the controversy there concerned the
right of a nephew of the testator to impugn the will, it being alleged that he
was not a legal heir and had no interest in the probate.
As transcribed in the majority decision, it will be seen that the attestation
clause is truncated and meaningless. The last of the compound sentence in
incomplete, lacking an adjective phrase. Counsel for appellee contends
that the phrase "ha sido firmado por el testador" or equivalent expression
between the words "del mismo" and the words "en nuestra presencia"
should be inserted if the sentence is to be complete and have sense. The
attestation clause with the inclusion of the omitted phrase, which we
italicize should read thus:
Nosotros, los que suscribimos, todos mayores de edad, certificamos que el
testamento que precede escrito en la lengua castellana que conoce la
testador, compuesto de las paginadas utiles con la clausula de
atestiguamiento paginadas correlativamente en letras y numeros en la
parte superior de la casilla, asi como todos las hojas del mismo (Ha sido
firmado por el testador) en nuestra presencia y que cada de nosotros
hemos atestiguado y firmado dicho documento y todas las hojas del mismo
presencia del testador y en la de cada uno de nosotros.
It seems obvious that the missing phrase was inadvertently left out. The
probabilities of error in the copy are enhanced by the fact that the form of
the will was not in controversy. The form of the will being immaterial, it is
easily conceivable that little or on care was employed in the copying thereof
in the pleading or record on appeal above mentioned. The absence of the
signature of the testator on the first page of the copy is an additional proof
that little or on pain was taken to insure accuracy in the transcription. The
appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the
decision says. Certainly, Attorney Mariano Omaña, who drafted the whole
instrument and signed it as an attesting witness, knew the law and, by the
context of the whole instrument, has shown familiarity with the rules of
grammar and ability to express his idea properly.
Read in the light of these circumstances — without mentioning the
evidence or record, not objected to, that the testator signed the will in the
presence of the attesting witnesses — so important an omission as to
make the sentence senseless — granting such omission existed in the
original document-could not have been intentional or due to ignorance. The
most that can be said is that the flaw was due to a clerical mistake,
inadvertance, or oversight.
There is insinuation that the appellee in agreeing that the will read as it was
"reproduced in the record on Appeal" above mentioned is bound by the
agreement. This is not an absolute rule. The binding effect of a stipulation
on the parties does not go to the extent of barring them or either of them
from impeaching it on the score of clerical error or clear mistake. That there
was such mistake, is indubitable. It is noteworthy that the opponent and
appellant herself appears not to have noticed any defect in the attestation
clause as copied in the stipulation. It would seem that in the court below
she confined her attack on the will to the alleged failure of the testator to
sign the first page. We say this because it was only the alleged unsigning
of the first page of the document which the trial court in the appealed
decision discussed and ruled upon. There is not the slightest reference in
the decision, direct or implied, to any flaw in the attestation clause — which
is by far more important than the alleged absence of the testator's
signature on the first page.
As stated the problem posed by the omission in question is governed, not
by the law of wills which requires certain formalities to be observed in the
execution, but by the rules of construction applicable to statues and
documents in general. And this rule would obtain even if the omission had
occurred in the original document and not in the copy alone. In either case,
the court may and should correct the error by supplying the omitted word or
words.
In Testamentaria del finado Emilio Alcala, a similar situation arose and the
Court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista
que en su redaccion se ha incurrido en omisiones que la razon y el sentido
comon pueden suplirlas sin alterar ni tergiversar la intencion tanto del
testador como la de los tres testigos que intervinieron en el otorgamiento
de la misma. Teniendo en cuenta la fraselogia de la segunda parte de la
clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio
de su discrecion y en la aplicacion de las reglas de interpretacion de
documentos, pueden subsanarlos para dar efectividad a la intencion y
hacer que el conjunto de los terminos de la clausula de atestacion surtan
sus efectos.
La interpritacion que se acaba de bar a la clausula de atestacion y la
correccion de los errores gramaticales de que misma adolece, incluyendo
la insercion del verbo "firmamos" que se omitio involuntariamente, esta de
acuerdo con las reglas fundamentals de interpretacion de documentos
segun las cuales se debe hacer prevalecer siempre la intencion del que
haya redactado el instrumento (art. 288, Cod. de Proc. Civ.; Pecson contra,
45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)
La solucion que se acaba de bar al asunto es la que se halla mas
conforme con la justificia en vista de que se ha presentado prueba alguna
que insinue siquiera que en el otorgamiento del testamento se ha cometido
dolo o fraude con el animo de perjudiar a cualquiera. (Testamentaria de
Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131, 132.)
From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied
by the court whenever necessary to effectuate the testator's intention as
expressed in the will; but not where the effect of inserting the words in the
will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50, 51, the same work says: "To
aid the court in ascertaining and giving effect to the testator's intention in
the case of an ambiguous will, certain rules have been established for
guidance in the construction or interpretation to be placed upon such a will,
and in general a will should be construed according to these established
rules of construction." Speaking of construction of statutes which, as has
been said, is applicable to construction of documents, the same work, in
Vol. 59, p. 992, says: "Where it appears from the context that certain words
have been inadvertently omitted from a statute, the court may supply such
words as are necessary to complete the sense, and to express the
legislative intent.
Adding force to the above principle is the legal presumption that the will is
in accordance with law. (2 Page on Wills, 840, 841; 57 Am. Jur., 720.)
Let us assume, for the purpose of this decision only, that the attestation
clause was drawn as the draftsman intended, that the mistake in language
in said clause was not inadvertent, and consider the case on the premise
from which the court has approached it; is the decision well grounded, at
least in the light of this court's previous decisions?
At the outset, it should be pointed out that as early as 1922 a similar case,
in which the validity of the will was sustained, found its way into this court.
(Aldaba vs. Roque, 43 Phil., 378). The case was more than four-square
behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge or writing the entire attestation
clause in the body of the will, the witnesses limiting their role to signing the
document below the testator's signature. Here, at most, the testator took
away from the witness only a small part of their assigned task, leaving them
to perform the rest.
Referring to "the lack of attestation clause required by law," this court, in a
unanimous decision in banc, through Mr. Justice Villamor said (syllabus):
"When the attestation clause is signed by the witnesses to the instruments
besides the testator, such attestation clause is valid and constitutes a
substantial compliance with the provisions of section 1 of Act No. 2645,
even though the facts recited in said attestation appear to have been make
by the testator himself."
That was good doctrine when it was announced. We think it is good law
still. That ruling should set the present case at rest unless the court wants
to discard it. On the possibility that this is the intention, we will dwell on the
subject further.
This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil.,
437, "that there have been noticeable in the Philippines two divergent
tendencies in the law of wills — the one being planted on strict construction
and the other on liberal construction. A late example of the former views
may be found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150,
sanctioning a literal enforcement of the law. The basic case in the other
direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil.,
476, oft-cited approvingly in later decisions." In the Abangan case,
unanimous court, speaking through Mr. Justice Avanceña, later Chief
Justice, observed: "The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to
attain these primodial ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle
were numerous: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque
(1922), 43 Phil., 378; Unson vs. Abella (1922,) 43 Phil., 494; Pecson vs.
Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46
Phil., 922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales
(1929), 53 Phil., 104; Rey vs. Cartegana (1931), 56 Phil., 282; Ticson vs.
Gorostiza (1932), 57 Phil., 437; Testamentaria de M. Ozoa (1933), 57 J. F.,
1007; Sebastian vs. Pañganiban (1934), 59 Phil., 653; Rodriguez vs. Yap
(1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40
Off. Gaz., 1st Suppl. No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off.
Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940)4, 40 Off. Gaz., 7th
Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz., 1844;
Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa (1941)7,
40 Off. Gaz., 14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46
Off. Gaz., Suppl. No. 1, p. 211.
The majority decision says, and we quote: "If we cure a deficiency by
means of inferences, when are we going to stop making inferences to
supply fatal deficiencies in wills? Where are we to draw the line?" These
same questions might well have been asked in the case above cited by the
opponents of the new trends. But the so-called liberal rule does not offer
any puzzle or difficulty, nor does it open the door to serious consequences.
The decisions we have cited to tell us when and where to stop; the dividing
line is drawn with precision. They say "Halt" when and where evidence
aliunde to fill a void in any part of the document is attempted. They only
permit a probe, an exploration within the confines of the will, to ascertain its
meaning and to determine the existence or absence of the formalities of
law. They do not allow the courts to go outside the will or to admit extrinsic
evidence to supply missing details that should appear in the will itself. This
clear, sharp limitation eliminates uncertainly and ought to banish any fear of
dire results.
The case at hand comes within the bounds thus defined. If the witnesses
here purposely omitted or forgot that the testator signed the will in their
presence, the testator said that he did and the witnesses by their
signatures in the will itself said it was so. No extraneous proof was
necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it
was the thing that led to unfortunate consequences. It was the realization of
the injustice of the old way that impelled this court, so we believe, to
forsake the antiquated, outworn worship of form in preference to
substance. It has been said, and experience has known, that the
mechanical system of construction has operated more to defeat honest
wills than prevent fraudulent ones. That, it must be conceded, is the effect
in this case of this court's rejection of the will under consideration. For the
adverse party concedes the genuineness of the document. At least, the
genuineness is super obvious, and there is not the slightest insinuation of
undue pressure, mental incapacity of the testator of fraud.
It is said that for the testator to certify that he signed the will in the
witnesses' presence "would be like lifting one's self by his own bootstraps."
The simile, we say with due respect, does not look to us quite well placed.
Under physical law a man cannot raise his body from the ground by his
own bare hands without the aid of some mechanical appliance, at least not
for more than a flitting moment. But there is no impossibility or impropriety
in one attesting to his own act unless forbidden by rules of positive law. The
rationale of our dissent is that he is not. If we were to make a metaphorical
comparison, it would be more appropriate to say that a man can and
generally does himself pull the bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for
objecting to the testator instead of the witnesses certifying that he signed
the will in the presence of the latter. The will is the testator's and the
intervention of attesting witnesses is designed merely to protect the
testator's and not anybody else's interest.
If the sole purpose of the statute is to make it certain that the testator has
definite and complete intention to pass his property, and to prevent, as far
as possible, any chance of substituting one instrument for another (1 Page
on Wills, 481), What better guaranty of the genuineness of the will can
there be than a certification by the testator himself in the body of the will so
long as the testator's signature is duly authenticated? Witnesses may
sabotage the will by muddling it or attestation clause. For the testator, who
is desirous of making a valid will, to do so would be a contradiction. If the
formalities are only a means to an end and not the end themselves, and
that end is achieved by another method slightly different from the
prescribed manner, what has been done by the testator and the witnesses
in the execution of the instant will should satisfy both law and conscience.
The chief requirements of statutes are writing, signature by the testator,
and attestation and signature of three witnesses. Whether the courts
profess to follow the harsher rule, whether to follow the milder rule, they
agree on one thing — that as long as the testator performs each of those
acts the courts should require no more. (1 Page on Wills, 481, 484.)
Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION
March 20, 1953
TUASON, J.:
This appeal is before us on a motion for reconsideration of this court's
decision. Whereas formerly six justices voted for reversal and five for
affirmance of the probate court's order admitting the will to probate, the
vote upon reconsideration was six for affirmance and five for reversal,
thereby making the dissenting opinion, which had been filed, the prevailing
rule of the case. Under the circumstances, this resolution will largely be
confined to a restatement of that dissenting opinion.
The will in question was presented for probate in the Court of First Instance
of Manila in 1943 with Roberto Toledo y Gil, decedent's nephew, and Pilar
Gil Vda. de Murciano, decedent's sister opposing the application. Toledo's
legal right to intervene was questioned by the proponent of the will, and the
objection was sustained in an order which was affirmed by this court in G.
R. No. L-254. As a result of the latter decision, Toledo was eliminated from
the case and did not appear when the trial was resumed.
The proceeding seems to have held in abeyance pending final disposition
of Toledo's appeal, and early in 1945, before the application was heard on
the merit, the record, along with the will, was destroyed, necessitating its
reconstitution after liberation. In the reconstitution, a stipulation of facts was
submitted in which, according to the appealed order, "both parties . . .
agreed that the will as transcribed in the record on appeal in Case G. R.
No. L-254 is true and a correct copy.
The will consisted of only two pages, and the attestation clause as thus
copied reads:
NOSOTROS los que suscribimos, todos mayores de edad, certificamos:
que el testamento que precede escrito en la lengua castellana que canoce
la testador, compuesto de dos paginas utiles con la clausula de
atestigamiento paginadas correlativamente en letras y numeros en la parte
superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en presencia del testador y en la
de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA.
(Fdo.) RAMON MENDIOLA.
(Fdo.) MARIANO OMAÑA
It will be noted from the above copy that the last of the compound sentence
is truncated and meaningless. This defect is the main basis of the
appellant's sole assignment of error.
Counsel for appellee contend that the phrase "han sido firmadas por el
testador" or equivalent expression between the words "del mismo" and the
words "en nuestra presencia" should be inserted if the attestation clause is
to be complete and have sense. With this insertion the attestation clause
would read ". . ., asi como todas las hojas del mismo han sido firmadas por
el testador en nuestra presencia . . ." The point is well taken.
It seems obvious that the missing phrase was left out from the copy. The
probabilities of error in the copy are enhanced by the fact that the form of
the Will was not controversy in Toledo's appeal. The form of the will being
immaterial, it is easily conceivable that little or no care was employed in
transcribing the document in the agreement or record on appeal. The
absence of the signature of the testator on the first page of the copy is an
additional proof that little or no pain taken to insure accuracy in the
transcription. The appearance of "la testadora" in the copy instead of "el
testador" is another indication of the haste and carelessness in the
transcription.
Quite aside from all this, the testator was presumed to know the law, as the
trial court says. Certainly, Attorney Mariano Omaña, who drew the
instrument and signed it as an attesting witness, knew the law and, by the
context thereof, has shown familiarity with the rules of grammar and ability
to express his idea properly. In the light of these circumstances and of
further fact that the clause was brief and, by its importance, must have
been written with utmost concern, so important an omission as to make the
clause or sentence senseless could not have been made, intentionally or
otherwise, in the original.
There is insinuation that the appellee in agreeing that the will read as it was
"reproduced in the Record on appeal" is bound by the agreement. This is
not an absolute rule. The binding effect of a stipulation on the parties does
not go to the extent of barring either of them from impeaching it on the
score of clerical error or clear mistake. The mistake just pointed out clearly
brings the case within the exceptions of the rule. The able counsel for the
proponent of the will could not possibly have subscribed to the agreement if
they had noticed the incomplete sentence in the copy without making an
objection or reservation.
The problem posed by the omission in question is governed, not by the law
of wills which requires certain formalities to be fulfilled in the execution, but
by the rules of construction applicable to statutes and documents in
general. And this rule would obtain whether the omission occurred in the
original document or in the copy alone. In either case, the court may and
should correct the error by supplying the omitted word or words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and
the court said:
Es evidente que leyendo la clausula de atestiguacion se nota a simple vista
que en su redaccion se ha incurrido en omisiones que la razon y el sentido
cumon pueden suplirlas sin altenar ni tergiversar la intencion tanto del
testador como la de los tres testigos que intervenieron en el otorgamiento
de la misma. Teniendo en cuenta la fraseologia de la segunda parte de la
clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio
de su discrecion y en la aplicacion de las reglas de interpretacion de
documentos, pueden subsanarlos para dar efectividad a la intencion y
hacer que el conjunto de los terminos de la clausula de atestacion surtan
efectos.
La interpretacion que se acaba de dar a la clausula de atestacion y la
correccion de los errores gramanticales de que misma adolece, incluyedo
la insercion del verbo "firmamos" que se omitio involuntariamente, esta de
acurdo con las reglas fundamentales de interpretacion de documentos
segun las cuales se debe hacer prevalecer siempre la intencion del que
haya redactado el instrumento (art 286, Cod. de Proc. Civil; Pecson contra
Coronel, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pages. 225, 226).
La solucion que se acaba de dar al asunto es la que se halla mas
conforme con la justicia en vista de que no se ha presentado prueba
alguna que insinue siquiera que en el otorgamiento del testamiento se ha
cometido dolo o fraude con el animo de perjudicar a cualquiera.
Testamentaria de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento, No. 23,
pags. 131, 132.)
From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied
by the court whenever necessary to effectuate the testator's intention as
expressed in the will: but not where the effect of inserting the words in the
will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50 and 51, the same work says:
"To aid the court in ascertaining and giving effect to the testator's intention
in the case of an ambiguous will, certain rules been established for
guidance in the construction or interpretation to be placed upon such a will,
and in general a will should be construed according to these established
rules of construction." And referring to construction of statues which, as has
been said, is applicable to construction of documents, C. J. S., in Vol. 59, p.
992, tells us that "Where it appears from the context that certain words
have been inadvertently from a statute, the court may supply such words
as are necessary to complete the sense, and to express the legislative
intent."
Adding force to the above principle is the legal presumption that the will is
in accordance with law. (2 Page on Wills 840; 57 Am. Jur., 720.)
But let it be assumed, for the sake of this decision only, that the attestation
clause was drawn exactly as it was copied in Toledo's record on appeal,
was the mistake fatal? Was it, or was it not, cured by the testator's own
declaration? to wit: "En testimonio de lo cual, firmo este mi testamento y en
el margen izquierdo de cada una de sus dos paginas utiles con la clausula
de atestiguamiento en presencia de los testigos, quienes a su vez firmaron
cada una de dichas paginas y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de marzo de mil novecientos treinta y nueve."
The answer is in the negative.
As early as 1922 a similar case, in which the validity of the will was
sustained, found its way into this court. See Aldaba vs. Roque, 43 Phil.,
378. That case was more than foursquare behind the case at bar. There
the departure from the statutory formality was more radical, in that the
testator took charge of writing the entire attestation clause in the body of
the will, the witnesses limiting their role to signing the document below the
testator's signature. Here, at the most, the testator took away from the
witnesses only a small part of their assigned task, leaving to them the rest.
Referring to "the lack of attestation clause required by law," this court, in a
unanimous decision in banc, through Mr. Justice Villamor said in the
Adalba-Roque case (syllabus):
When the attestation clause is signed by the witnesses to the instruments,
besides the testator, such attestation clause is valid and constitutes a
substantial compliance with the provisions of section 1 of Act No. 2645,
even though the facts recited in said attestation clause appear to have
been made by the testator himself.
That ruling should set the present case at rest unless we want to revert to
the old, expressly abandoned doctrine, in a long line of what we believe to
be better-considered decisions.
This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil.,
437, "that there have been noticeable in the Philippines two divergent
tendencies in the lie of wills — the one being planted on strict construction
and the other on liberal construction. A late example of the former views be
found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150,
sanctioning a literal enforcement of the law. The basic rule in the other
direction, predicated on reason, is Abangan vs. Abangan (1919), 40 Phil.,
476, oft-cited approvingly in later decisions."
In the Abangan case, a unanimous court, speaking through Mr. Justice
Avanceña, later Chief Justice, observed:
"The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these
primodial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded."
Subsequent decisions which followed and adopted the Abangan principle
were: Avera vs. Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43
Phil., 378; Unson vs. Abella (1922), 43 Phil., 494; Pecson vs. Coronel
(1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil., 922;
Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53
Phil., 104; Rey vs. Cartagena (1931), 56 Phil., 282; Ticson vs. Gorostiza
(1932), 57 Phil., 437; Testamentaria de N. Ozoa (1933), 57 J. F., 1007;
Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs. Yap (1939),
40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz.,
1st Suppl., No. 3, p. 196; Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd
Suppl. No. 7, p. 51; Martir vs. Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11,
p. 215; Sabado vs. Fernandez (1941), 40 Off. Gaz., 1844; Mendoza vs.
Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De Villa (1941), 40 Off. Gaz.,
14th Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz.,
Suppl. No. 1, p. 211.
It is objected that "If we cure a deficiency by means of inferences, when are
we going to stop making inferences to supply fatal deficiencies in wills?
Where are we to draw the line?" These same question might well have
been asked by the opponents of the new trends in the cases above cited.
But the so-called liberal rule does not offer any puzzle or difficulty, nor does
it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do
not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only permit
a probe into the will, an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results.
The case at hand comes within the bounds thus defined if the witnesses
here purposely omitted or forgot to say that the testator signed the will in
their presence, the testator said that he did and the witnesses by their
signatures in the will itself said it was so. No extraneous proof was
necessary and none was introduced or taken into consideration.
To regard the letter rather than the spirit of the will and of the law behind it
was the thing that led to unfortunate consequences. It was the realization of
the injustice of the old way that impelled this court, so we believe, to
forsake the antiquated, outworn worship of form in preference to
substance. It has been said, and experience has shown, that the
mechanical system of construction has operated more to defeat honest
wills than prevent fraudulent ones. That, must be conceded, would be the
effect in this case if the will under consideration were rejected. For the
adverse party now concedes the genuineness of the document. At any rate,
the genuineness is super obvious, and there is not the slightest insinuation
of undue pressure, mental incapacity of the testator, or fraud.
It is said that for the testator to certify that he signed the will in the
witnesses' presence "would be like lifting one's self by his own bootstraps."
The simile does not look to us quite well placed. There is no impossibility or
impropriety in one attesting to his own act unless forbidden by rules of
positive law. The rationale of this decision is that he is not. If we were to
make a metaphorical comparison, it would be more correct to say that a
man can and generally does himself pull the bootstraps when he puts his
boots on.
Coming to execution of wills, we see no legitimate, practical reason for
objecting to the testator instead of the witnesses certifying that he signed
the will in the presence of the latter. The will is of the testator's own making,
the intervention of attesting witnesses being designed merely to protect his
interest. If the sole purpose of the statute in requiring the intervention of
witnesses is to make it certain that the testator has definite and complete
intention to pass his property, and to prevent, as far as possible, any
chance of substituting one instrument for another (1 Page on Wills, 481),
what better guaranty of the genuineness of the will can there be than a
certification by the testator himself in the body of the will so long as the
testator's signature is duly authenticated? Witnesses may sabotage the will
by muddling and bungling it or the attestation clause. For the testator, who
is desirous of making a valid will, to do so would be a contradiction. If the
formalities are only a means to an end and not the end themselves, and
that end is achieved by another method slightly from the prescribed
manner, what has been done by the testator and the witnesses in the
execution of the instant will should satisfy both law and conscience.
A second ground of attack on the questioned will is that the first page or
sheet thereof does not bear the testator's signature. The discussion on the
correctness of the copy of the attestation clause amply answers this
objection in fact, the appellee's case is much stronger on this point for the
reason that there is not only speculative but also positive basis for the
conclusion that the testator's signature was affixed to the first page of the
original. Both the testator and the attesting witnesses stated in the will and
in the attestation clause, respectively, that the former signed both pages or
sheets of the testament.
Upon the foregoing consideration, the order of the probate court is affirmed
with costs.
A motion dated February 17, 1953, was filed after the motion for
reconsideration was deliberated and voted upon, in behalf of the minor
children of Carlos Worrel, who was a residuary legatee under the will and
who is alleged to have died on February 6, 1949. The motion prays that a
guardian ad litem be appointed for the said children, and allowed to
intervene and file "A Supplementary Memorandum in Support of Appellant's
(Appellee's?) Motion for reconsideration." Counsel for the appellant objects
to the motion on the ground that the movants having only a contingent
interest under the will are not of right entitled to intervene.
As this case has already been considerably delayed and thoroughly
considered and discussed from all angles, it is the sense of the court that
the children's intervention with the consequent further delay of the decision
would not serve the best interest of the parties. For this reason, the motion
is denied.
Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.
Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

Footnotes
1 71 Phil., 561.

2 72 Phil., 546.

TUASON J., dissenting:

1 68 Phil., 126.

2 68 Phil., 128.

3 68 Phil., 745.
4 70 Phil., 89.
5 72 Phil., 531.
6 72 Phil., 546.

7 71 Phil., 561.

8 81 Phil., 429.

Montinola v. Herbosa, CA Rep 2'd 377

See other file

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 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. 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:
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. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
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
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 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:
xxx xxx xxx
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
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.
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.
Melencio-Herrera (Chairperson), Paras, Padilla and Regalado JJ., concur.

Footnotes
1 Corona v. Court of Appeals, No. 59821, August 30, 1982, 116 SCRA 316.
2 Kapunan, Santiago, M., J., ponente; Puno Reynato S. and Marigomen
Alfredo, JJ., concurring.
3 Rollo, 21.
4 Id., 22.
5 Id.
6 Judge (now Justice of the Court of Appeals) Asaali S. Isnani presiding.
7 Rollo, 23.
8 Id., 26.
9 Now, Article 87 of the Family Code.
10 Rollo, 28-29.
11 73 Phil. 546 (1942).
12 64 Phil. 187 (1937).
13 CIVIL CODE, Art. 2010.
14 III TOLENTINO, CIVIL CODE OF THE PHILIPPINES 26 (1973 ed.),
citing 1 GOMEZ 53.
15 See CIVIL CODE, supra., arts. 793, 794, 930.
16 Supra.
17 Supra., 547.
18 Supra.
19 Supra., 190-191.
20 CIVIL CODE, supra, art. 160.
21 In the words of the Appellate Court: "Since private respondent and his
late wife did not enter into a marriage settlement before marriage, their
property relationship was that of conjugal partnership governed by the Civil
Code. The system of conjugal partnership prohibits, as already mentioned,
donation between the spouses during the marriage, except that which
takes effect after the death of the donor, in which case, the donation shall
comply with the formalities of a will (Arts. 133, 728, 805). To allow the
prohibited donation by giving it a cloak of aleatory contract would sanction
a (modification) of a marriage settlement during marriage by a mere
stipulation. As mandated by Art. 52, the nature, consequences and
incidents of marriage, which is not a mere contract but an inviolable social
institution are governed by law, and not subject to stipulation."
22 Id.
23 Id.
24 CIVIL CODE, supra., art. 1193.
25 V PARAS, CIVIL CODE OF THE PHILIPPINES, 782 (1986 ed.)
26 Rivera, supra, 548.