G.R. No.

L-7188

August 9, 1954

In
re:
Will
and
Testament
of
SEVERINA
A.
VDA.
DE
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B.
C. de la Victoria for appellees.

Ladonga,

the

Mariano

deceased
ENRIQUEZ,

A.

Zosa

REVEREND
SANCHO
ABADIA.
ET
AL., petitioners-appellees,

and

B.

G.

Advincula

for

appellants.

MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to
be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943,
in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value.
On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the
Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left
no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his
presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish
which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each
of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and
finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page
after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any
evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the
testator and that although at the time it was executed and at the time of the testator's death, holographic wills were
not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil
Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to
carry out the intention of the testator which according to the trial court is the controlling factor and may override any
defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and
Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions
of law are involved in the appeal, the case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a
holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed.
It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in
1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution
of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin
by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A"
because the back pages of the first two folios of the will were not signed by any one, not even by the testator and
were not numbered, and as to the three front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said:
. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing
authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of
all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:
From an examination of the document in question, it appears that the left margins of the six pages of the
document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the
attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the
document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not
allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the
lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form
depends upon the observance of the law in force at the time it is made." The above provision is but an expression or
statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the
time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is
decided by the court but at the time the instrument was executed. One reason in support of the rule is that although
the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his
estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in

reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the
case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all
adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when
statutes passed after the execution of the will and after the death of the testator lessen the formalities required by
law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed
according to the law in force at the time of execution. However, we should not forget that from the day of the death
of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected
under the due process clause of the constitution against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a
will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his
death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the
estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills,
Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.
Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L.,
JJ., concur.

G.R. No. L-32636

March 17, 1930

In
the
matter
Estate
A.W.
vs.
ANNIE COUSHING HIX, oppositor-appellee.

of

Edward

C.A.
Sobral
Harvey & O' Brien and Gibbs & McDonough for appellee.

Randolph
Hix,
deceased.
FLUEMER, petitioner-appellant,

for

appellant.

MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance
Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is
not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving
party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First
Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of
Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix
who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E.,
vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance
with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine
Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no was printed or published under
the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the
extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State
of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on this point is to be found in the
testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the
testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of
the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to
the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some
other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish
this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning
administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory by attempting to
have the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition
asking the court to accept as part of the evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of
Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and
Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by
another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia,
appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was
filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929.
These facts are strongly indicative of an intention to make the Philippines the principal administration and West
Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil
Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West
Virginia has been requested. There is no showing that the deceased left any property at any place other than the
Philippine Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from
Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of
this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the
appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of
an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A,
pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint
last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during
our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being
married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy
the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe
dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No.
499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de
la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo
segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de
la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la
sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de
la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the
same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings
No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot
and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March
30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed
contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the
Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of
probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament.
Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly
by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this
form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the
present case, one such joint last will and testament has been admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that
are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our
Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the
joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance
of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament
despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint
testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate
court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a
petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of
Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment
of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs.
Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting
his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision
on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate
decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded,
the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the
participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed
in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51
Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not
exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the
only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid
when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and
no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is
affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and
Zaldivar, JJ., concur.

G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in
Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of
the executor, directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie
Louise C. Borton, etc., in accordance with the provisions of the will of the testator Edward E. Christensen. The will
was executed in Manila on March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard
Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665
Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my above named
daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any
way related to me, nor has she been at any time adopted by me, and who, from all information I have now
resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with
the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have
accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and
estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I
may be possessed at my death and which may have come to me from any source whatsoever, during her
lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project of partition
ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her
(Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84
an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that
the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary
thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in
full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the
deceased Christensen should not be the internal law of California alone, but the entire law thereof because several
foreign elements are involved, that the forum is the Philippines and even if the case were decided in California,
Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of
the decedent, she is deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California
at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed
by the law of California, in accordance with which a testator has the right to dispose of his property in the way he
desires, because the right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate,
77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on

Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these
were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT
HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY,
IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE
OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF
INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY
DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY
THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN
CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at
the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines,
as witness the following facts admitted by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E.
Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the
Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport
"Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He
stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine
years until 1913, during which time he resided in, and was teaching school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again
departed the Philippines for the United States and came back here the following year, 1929. Some nine
years later, in 1938, he again returned to his own country, and came back to the Philippines the following
year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by
this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not
covered by this stipulation of facts.
1wph 1.t

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines
during World War II. Upon liberation, in April 1945, he left for the United States but returned to the
Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits
"AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last
will and testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5,
1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that
he was born in New York, migrated to California and resided there for nine years, and since he came to the
Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and

considering that he appears never to have owned or acquired a home or properties in that state, which would
indicate that he would ultimately abandon the Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote something more than mere physical presence.
(Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in
Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory
of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of
California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that
he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in
accordance with the following principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent
abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in
a place where he has never been. And he may reside in a place where he has no domicile. The man with
two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went
on business which would require his presence for several weeks or months, he might properly be said to
have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in hand, not giving up his former "home," he could
not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well
as physical presence. "Residence simply requires bodily presence of an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence,
however, is a term used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
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 where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the term "national
law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United States, each state of
the Union having its own private law applicable to its citizens only and in force only within the state. The "national
law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property? The decision of
the court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator
may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal.
Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which
is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the
person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified
to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased
Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited
case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law
being in force in the State of California of which Christensen was a citizen. Appellant, on the other hand, insists that
Article 946 should be applicable, and in accordance therewith and following the doctrine of therenvoi, the question of
the validity of the testamentary provision in question should be referred back to the law of the decedent's domicile,
which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter
to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to
the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the
Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined
the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not
have been to Michigan Conflict of Laws. This would have resulted in the "endless chain of references" which
has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical
reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true
that such a solution avoids going on a merry-go-round, but those who have accepted the renvoitheory avoid
this inextricabilis circulas by getting off at the second reference and at that point applying internal law.
Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule
of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will
result from adoption of their respective views. And still more strange is the fact that the only way to achieve
uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of
the litigation disagree as to whether the renvoi should be accepted. If both reject, or both accept the
doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the
Michigan court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same
result would happen, though the courts would switch with respect to which would hold liability, if both courts
accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where
the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the
land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference
goes only to the internal law. Thus, a person's title to land, recognized by the situs, will be recognized by
every court; and every divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in
Massachusetts, England, and France. The question arises as to how this property is to be distributed among
X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to
intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by
hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn
to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution
accordingly. An examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the national law of the
deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to
intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If it accepts the socalled renvoidoctrine, it will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a
foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum.
This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'"
(Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the
further question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be
resorted to? This is a question which, while it has been considered by the courts in but a few instances, has
been the subject of frequent discussion by textwriters and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation of the
adoption of the foreign law in toto would in many cases result in returning the main controversy to be
decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoiis
that the court of the forum, in determining the question before it, must take into account the whole law of the
other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which
the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoi has
generally been repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by
Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the
article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as
incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of
laws as well. According to this theory 'the law of a country' means the whole of its law.
xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the
form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards
their personal statute, and desires that said personal statute shall be determined by the law of the
domicile, or even by the law of the place where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one of them is
necessarily competent, which agree in attributing the determination of a question to the same
system of law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has
died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of
Belgium would distribute personal property upon death in accordance with the law of domicile, and if he
finds that the Belgian law would make the distribution in accordance with the law of nationality that is the
English law he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be
enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to
citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in
other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with
foreign element involved is in accord with the general principle of American law that the domiciliary law should
govern in most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing the manner of
distribution of the property, the law of the state where he was domiciled at the time of his death will be
looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in
questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the
personal estate in case of intestate succession, the same rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of
Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is
the general convenience of the doctrine. The New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the
universal application. It had its origin in that international comity which was one of the first fruits of
civilization, and it this age, when business intercourse and the process of accumulating property take but
little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the
internal law of California. But as above explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We
should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of laws
rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as
so declared in Article 16 of our Civil Code, then we must enforce the law of California in accordance with the
express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-oflaws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is
situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the
law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should
govern. This contention can not be sustained. As explained in the various authorities cited above the national law
mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946,
which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule
in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California,
to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer

the case back to California; such action would leave the issue incapable of determination because the case will then
be like a football, tossed back and forth between the two states, between the country of which the decedent was a
citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws
rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50
Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by
appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the
subject in each case does not appear to be a citizen of a state in the United States but with domicile in the
Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law
similar to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the
validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by
the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of
California..
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with
instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs
against appellees.
Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila
dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
1wp h1. t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary
E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased
him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who
survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he
had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the
foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis,
Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
1wp h1. t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court
approved and allowed the various motions or petitions filed by the latter three requesting partial advances on
account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final
Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the
legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of
P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will
and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven
legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry
receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964,
issued an order overruling the oppositions and approving the executor's final account, report and administration and
project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this
case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositorsappellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court
in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is
a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was
both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict
of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a
reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are
situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence,
however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants'
position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of
Article 17 in relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional
rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
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 he 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.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,
Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial
change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose
to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate
succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which
decrees that capacity to succeed is to be governed by the national law of the decedent.
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.
Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the
other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law,
for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his
properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for
his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code
states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the
laws 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.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

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 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.
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 expartepresentation 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 counselof-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 exparte, 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 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. 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.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.

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
Rigor-Escobar, 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:
Title
No.

Lot
No.

Area in
Has.

Tax
Dec.

Ass.
Value

T653
0

366
3

1.6249

1874
0

P
340.00

T654
8

344
5-C

24.299
8

1873
0

7,290.0
0

T652
5

367
0

6.2665

1873
6

1,880.0
0

T652
1

366
6

11.925
1

1873
3

3,580.0
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.
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 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.
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
Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.
Abad Santos, J., took no part.