2 Subjects of Succession Cases

Atty. Uribe
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of
Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.

In her petition, Nenita alleged that the testatrix was an American citizen at
the time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at 2167 Leveriza,
Malate, Manila; that during her lifetime, the testatrix made her last wig and
testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that after the
testatrix death, her last will and testament was presented, probated, allowed,
and registered with the Registry of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the administrator who was appointed
after Dr. Barzaga had declined and waived his appointment as executor in
favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in
the Philippines.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to
believe that the will in question is a forgery; that the intrinsic provisions of the
will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent Nenita C.
Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs.
As Hermogenes Campos was the only compulsory heir, he executed an
Affidavit of Adjudication under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the ownership of the entire estate of
the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a
petition for the reprobate of a will of the deceased, Adoracion Campos,
which was allegedly executed in the United States and for her appointment
as administratrix of the estate of the deceased testatrix.

On December 1, 1978, however, the petitioner through his counsel, Atty.

Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights
or Interests) stating that he "has been able to verify the veracity thereof (of
the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, was a citizen of the
United States of America with a permanent residence at
4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D)
that when alive, Adoracion C. Campos executed a Last
Will and Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary sojourn in
the Philippines, Adoracion C. Campos died in the City of
Manila (Exhibit C) leaving property both in the Philippines
and in the United States of America; that the Last Will and

2 Subjects of Succession Cases

Atty. Uribe
Testament of the late Adoracion C. Campos was admitted
and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia,
U.S.A., and letters of administration were issued in favor
of Clement J. McLaughlin all in accordance with the laws
of the said foreign country on procedure and allowance of
wills (Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render her
unfit as administratrix of the estate in the Philippines of the
late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will
annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14, 1979,
confirming the withdrawal of his opposition, acknowledging the same to be
his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying
that the order allowing the will be set aside on the ground that the withdrawal
of his opposition to the same was secured through fraudulent means.
According to him, the "Motion to Dismiss Opposition" was inserted among
the papers which he signed in connection with two Deeds of Conditional
Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who
filed the withdrawal of the opposition was not his counsel-of-record in the
special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear.
He made several motions for postponement until the hearing was set on
May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate
and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for
lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on

May 29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court.
Until this Motion is resolved, may I also request for the
future setting of the case for hearing on the Oppositor's
motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980.
When the case was called for hearing on this date, the counsel for petitioner
tried to argue his motion to vacate instead of adducing evidence in support
of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support
thereof. Petitioner filed a motion for reconsideration but the same was
denied. In the same order, respondent judge also denied the motion to
vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a
will, which, incidentally has been questioned by the respondent, his children
and forced heirs as, on its face, patently null and void, and a fabrication,
appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the
instant case which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the
respondent and her sisters, only remaining children and forced heirs was
denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge
acted without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of the
Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C.
Campos, thus, paving the way for the hearing ex-parte of
the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the court
but by way of a motion presented prior to an order for the
distribution of the estate-the law especially providing that

2 Subjects of Succession Cases

Atty. Uribe
repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the
estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime
can be divested by a decree admitting a will to probate in
which no provision is made for the forced heir in complete
disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground
that no evidence was adduced to support the Petition for
Relief when no Notice nor hearing was set to afford
petitioner to prove the merit of his petition a denial of
the due process and a grave abuse of discretion
amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the
fact that the Testator at the time of death was a usual
resident of Dasmarias, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case
(De Borja vs. Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation
that the respondent judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition to the reprobate of the
will.
We find no grave abuse of discretion on the part of the respondent judge. No
proof was adduced to support petitioner's contention that the motion to
withdraw was secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show that after the firing
of the contested motion, the petitioner at a later date, filed a manifestation
wherein he confirmed that the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from
the case and had been substituted by Atty. Franco Loyola who in turn filed
the motion. The present petitioner cannot, therefore, maintain that the old
man's attorney of record was Atty. Lagrosa at the time of filing the motion.
Since the withdrawal was in order, the respondent judge acted correctly in
hearing the probate of the will ex-parte, there being no other opposition to
the same.

The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by
law. The intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue. (Maninang vs.
Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and
thus, the respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was, at the
time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both
with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under
consideration, whatever may be the nature of the property
and regardless of the country wherein said property may
be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation
of the decedent.

2 Subjects of Succession Cases

Atty. Uribe
the law which governs Adoracion Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Although the parties admit
that the Pennsylvania law does not provide for legitimes and that all the
estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be
contrary to the sound and established public policy and would run counter to
the specific provisions of Philippine Law.

Furthermore, such request should be embodied in a motion and not in a

mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction
utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is
provided that:
SECTION 1. Where estate of deceased persons settled.
If the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the
province in which he resided at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The court
first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record.

It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16(2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely applied in the case
ofBellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional
rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was
a citizen of the State of Texas, U.S.A., and under the law
of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of
the will and the amount of successional rights are to be
determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of hearing for the petition for relief,
the records wig bear the fact that what was repeatedly scheduled for hearing
on separate dates until June 19, 1980 was the petitioner's petition for relief
and not his motion to vacate the order of January 10, 1979. There is no
reason why the petitioner should have been led to believe otherwise. The
court even admonished the petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no denial of due
process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate
would be heard and given preference in lieu of the petition for relief.

Therefore, the settlement of the estate of Adoracion Campos was correctly

filed with the Court of First Instance of Manila where she had an estate since
it was alleged and proven that Adoracion at the time of her death was a
citizen and permanent resident of Pennsylvania, United States of America
and not a "usual resident of Cavite" as alleged by the petitioner. Moreover,
petitioner is now estopped from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or question that same jurisdiction.
(See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284,
April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed
for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

2 Subjects of Succession Cases

Atty. Uribe
Teehankee, J., (Chairman), took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL
RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF
VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR
and JOVITA ESCOBAR DE FAUSTO,respondents-appellees.
D. Taedo, Jr. for appellants.

relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina RigorManaloto and Nestora Rigor-Quiambao. The testator gave a devise to his
cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest
(paragraphing supplied to facilitate comprehension of the testamentary
provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de
terreno palayeros situados en el municipiooo de Guimba
de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON;
Titulo Num. 6530, mide 16,249 m. cuadrados de
superficie Titulo Num. 6548, mide 242,998 m. cuadrados
de superficie y annual 6525, mide 62,665 m. cuadrados
de superficie; y Titulo Num. 6521, mide 119,251 m.
cuadrados de superficie; a cualquier pariente mio varon
mas cercano que estudie la carrera eclesiatica hasta
ordenarse de Presbiterado o sea Sacerdote; las
condiciones de estate legado son;

J. Palanca, Sr. for appellee.

(1.a) Prohibe en absoluto la venta de estos terrenos arriba
situados objectos de este legado;
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of
ricelands located at Guimba, Nueva Ecija, with a total area of around fortyfour hectares That devise was made in the will of the late Father Pascual
Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who
would study for the priesthood.

(2.a) Que el legatario pariente mio mas cercano tendra

derecho de empezar a gozar y administrar de este legado
al principiar a curzar la Sagrada Teologio, y ordenado de
Sacerdote, hasta su muerte; pero que pierde el legatario
este derecho de administrar y gozar de este legado al
dejar de continuar sus estudios para ordenarse de
Presbiterado (Sacerdote).

The parish priest of Victoria, who claimed to be a trustee of the said lands,
appealed to this Court from the decision of the Court of Appeals affirming the
order of the probate court declaring that the said devise was inoperative
(Rigor vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac,
CA-G.R. No. 24319-R, August 1, 1963).

Que el legatario una vez Sacerdote ya estara obligado a

celebrar cada ao VEINTE (20) Misas rezadas en sufragio
de mi alma y de mis padres difuntos, y si el actual
legatario, quedase excomulgado, IPSO FACTO se le
despoja este legado, y la administracion de esto pasara a
cargo del actual Parroco y sus sucesores de la Iglecia
Catolica de Victoria, Tarlac.

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan,
died on August 9, 1935, leaving a will executed on October 29, 1933 which
was probated by the Court of First Instance of Tarlac in its order of
December 5, 1935. Named as devisees in the will were the testators nearest

Y en intervalo de tiempo que no haya legatario

acondicionado segun lo arriba queda expresado, pasara

2 Subjects of Succession Cases

Atty. Uribe
la administracion de este legado a cargo del actual
Parroco Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara,

anualmente todos los productos que puede tener estate
legado, ganando o sacando de los productos anuales el
CINCO (5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE (20) Misas
rezadas que debiera el Parroco celebrar cada ao,
depositando todo lo restante de los productos de estate
legado, en un banco, a nombre de estate legado.

T
6
5
4
8

3
4
4
5
C

2
4
.
2
9
9
8

1
8
7
3
0

7
,
2
9
0
.
0
0

T
6
5
2
5

3
6
7
0

6
.
2
6
6
5

1
8
7
3
6

1
,
8
8
0
.
0
0

T
6
5
2
1

3
6
6
6

1
1
.
9
2
5
1

1
8
7
3
3

3
,
5
8
0
.
0
0

To implement the foregoing bequest, the administratix in 1940 submitted a

project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to
be given to the nearest male relative who shall take the
priesthood, and in the interim to be administered by the
actual Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors, the real
properties hereinbelow indicated, to wit:
T
i
t
l
e
N
o
.

T
6
5
3

L
o
t
N
o
.

A
r
e
a
i
n

T
a
x
D
e
c
.

H
a
s
.
3
6
6
3

1
.
6
2
4

1
8
7
4
0

A
s
s
.
V
a
l
u
e

.
0
0

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project
of partition, directed that after payment of the obligations of the estate
(including the sum of P3,132.26 due to the church of the Victoria parish) the
administratrix should deliver to the devisees their respective shares.

P
3
4
0

It may be noted that the administratrix and Judge Cruz did not bother to
analyze the meaning and implications of Father Rigor's bequest to his
nearest male relative who would study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and as the administratrix and the
legal heirs believed that the parish priest of Victoria had no right to

2 Subjects of Succession Cases

Atty. Uribe
administer the ricelands, the same were not delivered to that ecclesiastic.
The testate proceeding remained pending.

liberally construing the testamentary provisions so as to render the trust

operative and to prevent intestacy.

About thirteen years after the approval of the project of partition, or on

February 19, 1954, the parish priest of Victoria filed in the pending testate
proceeding a petition praying for the appointment of a new administrator
(succeeding the deceased administration Florencia Rigor), who should
deliver to the church the said ricelands, and further praying that the
possessors thereof be ordered to render an accounting of the fruits. The
probate court granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the delivery of
the ricelands to the church as trustee.

As refutation, the legal heirs argue that the Court of Appeals d the bequest
inoperative because no one among the testator's nearest male relatives had
studied for the priesthood and not because the trust was a private charitable
trust. According to the legal heirs, that factual finding is binding on this Court.
They point out that appellant priest's change of theory cannot be
countenanced in this appeal .

The intestate heirs of Father Rigor countered with a petition dated March 25,
1957 praying that the bequest be d inoperative and that they be adjudged as
the persons entitled to the said ricelands since, as admitted by the parish
priest of Victoria, "no nearest male relative of" the testator "has ever studied
for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was
opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge
Bernabe de Aquino, declared the bequest inoperative and adjudicated the
ricelands to the testator's legal heirs in his order of June 28, 1957. The
parish priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his order
of December 10, 1957 on the ground that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon City.
The administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It
held that Father Rigor had created a testamentary trust for his nearest male
relative who would take the holy orders but that such trust could exist only
for twenty years because to enforce it beyond that period would violate "the
rule against perpetuities. It ruled that since no legatee claimed the ricelands
within twenty years after the testator's death, the same should pass to his
legal heirs, citing articles 888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in
not finding that the testator created a public charitable trust and in not

In this case, as in cases involving the law of contracts and statutory

construction, where the intention of the contracting parties or of the
lawmaking body is to be ascertained, the primary issue is the determination
of the testator's intention which is the law of the case (dicat testor et erit lex.
Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of
testaments. When his intention is clearly and precisely expressed, any
interpretation must be in accord with the plain and literal meaning of his
words, except when it may certainly appear that his intention was different
from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is
"the life and soul of a will It is "the first greatest rule, the sovereign guide, the
polestar, in giving effect to a will". (See Dissent of Justice Moreland in
Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the
testator's intention is to be ascertained from the words of the wilt taking into
consideration the circumstances under which it was made", but excluding
the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following
re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives
who would pursue an ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.

2 Subjects of Succession Cases

Atty. Uribe
3. That the devisee at the inception of his studies in sacred theology could
enjoy and administer the ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to the time of his death but
the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate
every year twenty masses with prayers for the repose of the souls of Father
Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the
legacy and the administration of the riceland would pass to the incumbent
parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as
contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors,
and
7. That the parish priest-administrator of the ricelands would accumulate
annually the products thereof, obtaining or getting from the annual produce
five percent thereof for his administration and the fees corresponding to the
twenty masses with prayers that the parish priest would celebrate for each
year, depositing the balance of the income of the devise in the bank in the
name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the
testator intended to devise the ricelands to his nearest male relative who
would become a priest, who was forbidden to sell the ricelands, who would
lose the devise if he discontinued his studies for the priesthood, or having
been ordained a priest, he was excommunicated, and who would be
obligated to say annually twenty masses with prayers for the repose of the
souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would
administer the ricelands only in two situations: one, during the interval of
time that no nearest male relative of the testator was studying for the
priesthood and two, in case the testator's nephew became a priest and he
was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya
legatario acondicionado", or how long after the testator's death would it be

determined that he had a nephew who would pursue an ecclesiastical

vocation. It is that patent ambiguity that has brought about the controversy
between the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male
relative who would study for the priesthood should be determined. Did the
testator contemplate only his nearest male relative at the time of his
death? Or did he have in mind any of his nearest male relatives at anytime
after his death?
We hold that the said bequest refers to the testator's nearest male
relative living at the time of his death and not to any indefinite time thereafter.
"In order to be capacitated to inherit, the heir, devisee or legatee must be
living at the moment the succession opens, except in case of representation,
when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably
construed. To construe them as referring to the testator's nearest male
relative at anytime after his death would render the provisions difficult to
apply and create uncertainty as to the disposition of his estate. That could
not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three
sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
Quiambao. Obviously, when the testator specified his nearest male relative,
he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what
category of nearest male relative would be living at the time of his death, he
could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the
term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended
for Ramon Quiambao, the testator's nephew and godchild, who was the son
of his sister, Mrs. Quiambao. To prove that contention, the legal heirs
presented in the lower court the affidavit of Beatriz Gamalinda, the maternal
grandmother of Edgardo Cunanan, who deposed that after Father Rigor's
death her own son, Valentin Gamalinda, Jr., did not claim the devise,
although he was studying for the priesthood at the San Carlos Seminary,
because she (Beatriz) knew that Father Rigor had intended that devise for
his nearest male relative beloning to the Rigor family (pp. 105-114, Record
on Appeal).

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Atty. Uribe
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G.
Cunanan, was not the one contemplated in Father Rigor's will and that
Edgardo's father told her that he was not consulted by the parish priest of
Victoria before the latter filed his second motion for reconsideration which
was based on the ground that the testator's grandnephew, Edgardo, was
studying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to
be a seminarian in 1961. For that reason, the legal heirs apprised the Court
of Appeals that the probate court's order adjudicating the ricelands to the
parish priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to
evidence aliunde as to the testator's intention and which is hearsay, has no
probative value. Our opinion that the said bequest refers to the testator's
nephew who was living at the time of his death, when his succession was
opened and the successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas
cercano que estudie la camera eclesiatica" would include indefinitely anyone
of his nearest male relatives born after his death, he could have so specified
in his will He must have known that such a broad provision would suspend
for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya
legatario acondicionado"? The reasonable view is that he was referring to a
situation whereby his nephew living at the time of his death, who would like
to become a priest, was still in grade school or in high school or was not yet
in the seminary. In that case, the parish priest of Victoria would administer
the ricelands before the nephew entered the seminary. But the moment the
testator's nephew entered the seminary, then he would be entitled to enjoy
and administer the ricelands and receive the fruits thereof. In that event, the
trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the
time Father Rigor died in 1935 he had a nephew who was studying for the
priesthood or who had manifested his desire to follow the ecclesiastical
career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He
unequivocally alleged therein that "not male relative of the late (Father)
Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record
on Appeal).

Inasmuch as the testator was not survived by any nephew who became a
priest, the unavoidable conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the administration of the ricelands by
the parish priest of Victoria, as envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by
the testator in is favor assumes that he was a trustee or a substitute devisee
That contention is untenable. A reading of the testamentary provisions
regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator
was not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could become a
trustee only when the testator's nephew living at the time of his death, who
desired to become a priest, had not yet entered the seminary or, having
been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of
the testator manifested any intention to enter the seminary or ever became a
priest.
The Court of Appeals correctly ruled that this case is covered by article 888
of the old Civil Code, now article 956, which provides that if "the bequest for
any reason should be inoperative, it shall be merged into the estate, except
in cases of substitution and those in which the right of accretion exists" ("el
legado ... por qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article
960 (2), which provides that legal succession takes place when the will
"does not dispose of all that belongs to the testator." There being no
substitution nor accretion as to the said ricelands the same should be
distributed among the testator's legal heirs. The effect is as if the testator
had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the
indivisibility of the testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate succession as to the
property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra,
51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed.
Costs against the petitioner.

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Atty. Uribe
SO ORDERED
Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr.,
and Santos, JJ., concur.
Abad Santos, J., took no part.