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.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

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 exparte 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.
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.

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.
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-parte presentation 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 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 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.
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.
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 of Bellis 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. 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.
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.

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.
J. Palanca, Sr. for appellee.

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 forty- four 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.
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).
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 relatives, namely, his three sisters: Florencia RigorEscobar, Belina Rigor-Manaloto 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;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados
objectos de este legado;
(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).
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.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo
arriba queda expresado, pasara 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.
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:
Ti
tl
e
N
o.

Lo
t
No
.

Area
in
Has.

Ta
x
De
c.

Ass.
Value

T-

36

1.62

18

6
5
3
0

63

49

74
0

340.0
0

T6
5
4
8

34
45
-C

24.2
998

18
73
0

7,290
.00

T6
5
2
5

36
70

6.26
65

18
73
6

1,880
.00

T6
5
2
1

36
66

11.9
251

18
73
3

3,580
.00

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.
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 administer the ricelands, the same were not delivered to that
ecclesiastic. The testate proceeding remained pending.
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.
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 liberally construing the
testamentary provisions so as to render the trust operative and to prevent intestacy.
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 .
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, L-28734, 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 restatement 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.
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).
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.
SO ORDERED