TESTATE ESTATE OF ISABEL V. FLORENDO, DECEASED.

This is a special proceeding commenced in the Court of First
Instance of La Union to probate a joint and reciprocal will executed by
the spouses Isabel V. Florendo and Tirso Dacanay on October 20, 1940.
Isabel V. Florendo having died, her surviving spouse Tirso Dacanay is
seeking to probate said joint and reciprocal will, which provides in
substance that whoever of the spouses, joint testators, shall survive
the other, shall inherit all the properties of the latter, with an
agreement as to how the surviving spouse shall dispose of the
properties in case of his or her demise.

The relatives of the deceased Isabel V. Florendo opposed the probate of said will on various statutory grounds.

Before hearing the evidence the trial court, after requiring and
receiving from counsel for both parties written arguments on the
question of whether or not the said joint and reciprocal xd.ll may be
probated in view of article 669 of the Civil Code, issued an order
dismissing the petition for probate on the ground that said will is
null and void ab initio as having been executed in violation of article 669 of the Civil Code. From that order the proponent of the will has appealed.

Article 669 of the Civil Code reads as follows:

“Art. 669. Two or more persons cannot make a will
conjointly or in the same instrument , either for their reciprocal
benefit or for the benefit of a third person.”

We agree with appellant’s view, supported by eminent commentators,
that the prohibition of article 669 of the Civil Code is directed
against the execution of a joint will, or the expression by two or more
testators of their wills in a single document and by one act, rather
than against mutual or reciprocal wills, which may be separately
executed. Upon this premise, however, appellant argues that article 669
of the Civil Code has been repealed by Act No. 190, which he claims
provides for and regulates the extrinsic formalities of wills,
contending that whether two wills should be executed conjointly or
separately is but a matter of extrinsic formality.

The question now raised by appellant has recently been decided by this court adversely to him In re Will of Victor Bilbao, supra,
p. 144. It appears in that case that on October 6, 1931, the spouses
Victor Bilbao and Ramona M. Navarro executed a will conjointly, whereby
they directed that “all of our respective private properties both real
and personal, and all of our conjugal properties, and any other
property belonging to either or both of us, be given and transmitted to
anyone or either of us, who may survive the other, or who may remain
the surviving spouse of the other.” That will was denied probate by the
Court of First Instance of Negros Oriental on the ground that it was
prohibited by article 669 of the Civil Code. The surviving spouse as
proponent of the joint will also contended that said article of the
Civil Code had been repealed by sections 614 and 618 of the Code of
Civil Procedure, Act No. 190. In deciding that question this court,
speaking thru Mr. Justice Montemayor, said:

“We cannot agree to the contention of the appellant that the
provisions of the Code of Civil Procedure on wills have completely
superseded Chapter I, Title III of the Civil Code on the same subject
matter, resulting in the complete repeal of said Civil Code provisions.
In the study we have made of this subject, we have found a number of
cases decided by this court wherein several articles of the Civil Code
regarding wills have not only been referred to but have also been
applied side by side with the provisions of the Code of Civil Procedure.

*           *           *           *           *           *           *

“The provisions of Art. 669 of the Civil Code prohibiting the
execution of a will by two or more persons conjointly or in the same
instrument either for their reciprocal benefit or for the benefit of a
third person, is not unwise and is not against public policy. The
reason for this provision, especially as regards husband and wife,is
that when a will is made jointly or in the same instrument, the spouse
who is more aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own benefit or
for that of third persons whom he or she desires to favor. And, where
the will is not only joint but reciprocal, either one of the spouses
who may happen to be unscrupulous, wicked, faithless or desperate,
knowing as he or she does the terms of the will whereby the whole
property of the spouses both conjugal and paraphernal goes to the
survivor, may be tempted to kill or dispose of the other.

“Considering the wisdom of the provisions of this Art. 669 and the
fact that it has not been repealed, at least not expressly, as well as
the consideration that its provisions are not incompatible with those
of the Code of Civil Procedure on the subject of wills, we believe and
rule that said Art. 669 of the Civil Code is. still in force. And we
are not alone in this opinion..Mr. Justice Willard as shown by his
Notes on the Civil Code, on page 48 believes that this Art. 669 is
still in force. Sinco and Cagistrano in their work on the Civil Code,
Vol. II, page 33, favorably cite Justice Willard’s opinion that this
article is still in force. Judge Camus in his book on the Civil Code
does not include this article among those he considers repealed.
Lastly, we find that this Art. 669 has been reproduced word for word in
Art. 818 of the New Civil Code (Republic Act No. 336). The implication
is that the Philippine Legislature that passed this Act and approved
the New Civil Code, including the members of the Code Commission who
prepared it. are of the opinion that the provisions of Art. 669 of the
old Civil Code are not incompatible with those of the Code of Civil
Procedure.”

In view of the foregoing, the order appealed from is affirmed, with costs against the appellant.

Moran, C.J., Paras, Feria, Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.