G.R. Nos.

140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital
Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D.
SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction
and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999
and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the
petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc.
No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of
Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate
estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying
for the appointment of private respondent Elisa D. Seangio–Santos as special administrator and
guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the
deceased Segundo executed a general power of attorney in favor of Virginia giving her the power
to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is
the most competent and qualified to serve as the administrator of the estate of Segundo because
she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20,
1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the decedent is found to have left
a will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.
Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings.2

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat
at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan
sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia
Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel
Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan
ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya
makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi.
3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396
were consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings5
primarily on the ground that the document purporting to be the holographic will of Segundo does
not contain any disposition of the estate of the deceased and thus does not meet the definition of
a will under Article 783 of the Civil Code. According to private respondents, the will only shows an
alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being the case, private respondents maintained
that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it
is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the
petition for probate when on the face of the will it is clear that it contains no testamentary
disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the will;
2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition
does not apply because Segundo’s will does not constitute a universal heir or heirs to the exclusion
of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:

A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,

clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia.
[T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a
compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse
of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA
100 (1987)] has made its position clear: "for … respondents to have tolerated the probate of the
will and allowed the case to progress when, on its face, the will appears to be intrinsically void …
would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus
added futility. The trial court could have denied its probate outright or could have passed upon
the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was
resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack
of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement as to
costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION
OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED
ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:

I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF
THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE
CASE ON THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF
THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL,
DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS
LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH
THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE
UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE
FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH
INTRINSICALLY AND EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE
CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE
PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court
which respectively mandate the court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and place
to be published three weeks successively previous to the appointed time in a newspaper of general
circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the
testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory
heir. Thus, there is no preterition in the decedent’s will and the holographic will on its face is not
intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct
line of Segundo were preterited in the holographic will since there was no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing
of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners,
and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated, signed
and written by him in his own handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s

intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected
through a will wherein the legal cause therefor shall be specified. With regard to the reasons for
the disinheritance that were stated by Segundo in his document, the Court believes that the
incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son,
Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator,
his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of
the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the
testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such
child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be made
in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed
by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly deduced from
the terms of the instrument, and while it does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the property of the testator Segundo in favor
of those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in succession.
All rules of construction are designed to ascertain and give effect to that intention. It is only when
the intention of the testator is contrary to law, morals, or public policy that it cannot be given
effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and
the intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct
line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to
bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo
did not institute an heir16 to the exclusion of his other compulsory heirs. The mere mention of the
name of one of the petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.1âwphi1

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil
Code provides that no will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to
dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent
take precedence over intestate proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch
21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to
reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo
Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination
of the aforesaid testate proceedings.

No costs.
FISCHER VS JOHNSON

441 S.W.2d 132 (Ky. Ct. App. 1969)

WILLIAM DIXON, Special Commissioner.

This is an appeal from a judgment of the Jefferson Circuit Court refusing to order probate of a
purported will.

Daniel R. and Nellie Peterson had been married for many years and accumulated an estate worth
more than $43,000. They had no children and each executed a will leaving their property to the
survivor. After a long illness, Nellie died on July 14, 1966, and Daniel died February 2, 1967. While
visiting his wife at the hospital, Daniel met the appellant, Lucille Fischer, who attended his wife
during her illness, and he became very much attached to appellant.

On October 10, 1966, Mr. Peterson wrote in his own handwriting to a lawyer who had prepared
his and his wife's will and had done other legal work for the family. in words and figures as follows:

"Mr. Henry Burt Attorney at Law Kentucky Home Life Building Louisville, Kentucky
Dear Henry:

I have thought this over very carefully the past few weeks. My relatives on my wife's side have
never cared very much for me other than my mother-in-law. She would take from me and give to
them. I think the attitude is that I have so many things and they have so little. After my wife's
death, they have become very grasping, therefore, I think they deserve very little. Put these
explanations in my Will if you think it advisable.
1. To my sister Ruth, $1,000.

2. To May Murphy — Nurse at Norton Infirmary, $1,000.

3. To my namesake, Daniel Boston, $1,000 to be invested in U.S. Gov. Bonds until he is 18 so his
parents won't blow it.
4. The balance after funeral expense to be given to Lucille Fischer, an aid at Norton Infirmary.
Any furniture, painting or other possessions to be disposed of as she wishes other than the items
set out below. She is to be executrix without bond or surety.
5. Grandfather Table from the Freeman family to Clarence Freeman.
6. Grandfather Table, Blanket Chest from the Peterson family to Norman A. Johnson.
Some of my relatives will probably think this a little strange, but I cared for my mother-in-law for
27 years without any financial assistance from her son. I have provided a grave and stone for her
burial. He can surely pay the rest. This division has partially been caused in the last few days when
Mrs. Freeman began to pack her things for moving. Things that Nellie and I bought years ago and
she used, she took to her granddaughters thinking they were her own. I told Nell I would never
squabble with them over anything. I haven't. I stay away from home so they could take whatever
they want. In the event this doesn't reach you before my death, try to make this as legal and
binding as possible.
Sincerely,

Daniel R. Peterson"
This letter was offered and finally denied probate by the Jefferson Circuit Court which resulted in
this appeal by Mrs. Fischer.

Mr. Peterson and his wife had previously executed a formal will drawn by their attorney and it
appears that he had considerable knowledge of the requirements of drafting and executing a will,
which is verified by the letter to his attorney.

On the same day that Mr. Peterson wrote the letter in question, his mother-in-law and her son,
Colonel Clarence L. Freeman, were at his home selecting some furniture and belongings to take
from Mr. Peterson's home. This appeared to make Mr. Peterson very angry, according to Colonel
Freeman, and this may have accounted for the letter being written by Mr. Peterson on the same
date to his lawyer concerning the disposition of his property.

On the 12th or 13th, three or four days later, Mr. Peterson visited with Colonel Freeman and was
very pleasant and stated he was going to have to make a will since his wife had died.

According to William Weaver, a very close friend, Mr. Peterson had expressed an interest in leaving
Mrs. Fischer a part of his estate but, also, according to Mr. Weaver, he had at no time ever told
him that he left her any part of his estate by will.

The letter in question shows that it was not regarded by Mr. Peterson as a will but was simply a
direction to his attorney, Mr. Burt, to write a will. It said, "Put these explanations in my will if you
think advisable," and then he set out six items and to whom he wanted them bequeathed. The
next sentence in the letter stated, "In the event this doesn't reach you before my death, try to
make this as legal and binding as possible."

This letter was written three months and twenty days before Mr. Peterson's death. A will was
prepared according to its instructions and given Mr. Peterson for execution and he visited the office
of his lawyer who prepared it on four or five different occasions and made no effort to execute it
or legalize it.

In the case of Nelson v. Nelson, 235 Ky. 189, 30 S.W.2d 893 (1930), it is stated:

"We take it there will be no disputing the fact that the determination of whether an instrument is
testamentary in character depends wholly upon the intention of the maker, and that, in the
absence of a testamentary intent, there can never be a will."
This case, in some respects, is similar to Walker v. Hibbard, 185 Ky. 795, 215 S.W. 800, 11 A.L.R.
832 (1919), where a woman was having an operation and directed her aunt to see that her boy
friend received her property if she did not get well. But she did get well and this court held that
her getting well destroyed the will.

In this case Mr. Peterson lived more than three months after writing the letter in question to his
lawyer. He had a will prepared and delivered to him. It appears that he was a man of above
average intelligence and having had experience in making a will, it may be assumed that he would
have known much about the requirements of a will as the letter in question indicates. He picked
up a proposed will from his attorney which had set out the dispositions of his property as directed
in the letter and never executed it; also, at no time did he indicate to the man who was his closest
friend until the day of his death that he had ever left Mrs. Fischer anything.
We are of the opinion that the letter in question was not testamentary in character at the time of
the death of Mr. Peterson.

The judgment is affirmed.

All concur.

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. Tañedo, 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 año 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 año, 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
T-6530 3663 1.6249 18740 P 340.00
T-6548 3445-C 24.2998 18730 7,290.00
T-6525 3670 6.2665 18736 1,880.00
T-6521 3666 11.9251 18733 3,580.00

Total amount and value — 44.1163 P13,090.00

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

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

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

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that
the bequest be d inoperative and that they be adjudged as the persons entitled to the said
ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of" the
testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition
was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared
the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of
June 28, 1957. The parish priest filed two motions for reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10,
1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers
in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor
had created a testamentary trust for his nearest male relative who would take the holy orders but
that such trust could exist only for twenty years because to enforce it beyond that period would
violate "the rule against perpetuities. It ruled that since no legatee claimed the ricelands within
twenty years after the testator's death, the same should pass to his legal heirs, citing articles 888
and 912(2) of the old Civil Code and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary provisions
so as to render the trust operative and to prevent intestacy.

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

In this case, as in cases involving the law of contracts and statutory construction, where the
intention of the contracting parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention which is the law of the case (dicat testor et
erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March
28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his intention
is clearly and precisely expressed, any interpretation must be in accord with the plain and literal
meaning of his words, except when it may certainly appear that his intention was different from
that literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of
a will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's intention is
to be ascertained from the words of the wilt taking into consideration the circumstances under
which it was made", but excluding the testator's oral declarations as to his intention (Art. 789,
Civil Code of the Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following 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

Estate of THELMA L. RUSSELL, Deceased. GEORGIA NAN RUSSELL HEMBREE, Plaintiff and
Appellant, v. CHESTER H. QUINN, Defendant and Respondent.

COUNSEL

Higgs, Jennings, Fletcher & Mack, Vincent E. Whelan, Gerald J. O'Neill, Joel C. Estes and Donald
R. Lincoln for Plaintiff and Appellant.

McInnis, Focht & Fitzgerald and James L. Focht for Defendant and Respondent.

OPINION

SULLIVAN, J.

Georgia Nan Russell Hembree appeals from a judgment (Prob. Code, § 1240 fn. 1) entered in
proceedings for the determination of heirship (§§ 1080-1082) decreeing inter alia that under the
terms of the will of Thelma L. Russell, deceased, all of the residue of her estate should be
distributed to Chester H. Quinn.

Thelma L. Russell died testate on September 8, 1965, leaving a validly executed holographic will
written on a small card. The front of the card reads: [69 Cal. 2d 203]

"Turn the card

March 18-1957

I leave everything

I own Real &

Personal to Chester

H. Quinn & Roxy Russell

Thelma L. Russell"

THE REVERSE SIDE READS:

My ($10.) Ten dollar gold

Piece & diamonds I leave

to Georgia Nan Russell.

Alverata, Geogia [sic]."

Chester H. Quinn was a close friend and companion of testatrix, who for over 25 years prior to her
death had resided in one of the living units on her property and had stood in a relation of personal
trust and confidence toward her. Roxy Russell was testatrix' pet dog which was alive on the date
of the execution of testatrix' will but predeceased her. fn. 2plaintiff is testatrix' niece and her only
heir-at-law.

In her petition for determination of heirship plaintiff alleges, inter alia, that "Roxy Russell is an
Airedale dog"; fn. 3 that section 27 enumerates those entitled to take by will; that "Dogs are not
included among those listed in ... Section 27. Not even Airedale dogs"; that the gift of one-half of
the residue of testatrix' estate to Roxy Russell is invalid and void; and that plaintiff was entitled
to such one-half as testatrix' sole heir-at-law.

At the hearing on the petition, plaintiff introduced without objection extrinsic evidence establishing
that Roxy Russell was testatrix' Airedale dog which died on June 9, 1958. To this end plaintiff, in
addition to an independent witness, called defendant pursuant to former Code of Civil Procedure
[69 Cal. 2d 204] section 2055 (now Evid. Code, § 776). Upon redirect examination, counsel for
Quinn then sought to introduce evidence of the latter's relationship with testatrix "in the event
that your Honor feels that there is any necessity for further ascertainment of the intent above and
beyond the document."plaintiff's objections on the ground that it was inadmissible under the
statute of wills and the parole evidence rule "because there is no ambiguity" and that it was
inadmissible under section 105, were overruled. Over plaintiff's objection, counsel for Quinn also
introduced certain documentary evidence consisting of testatrix' address book and a certain
quitclaim deed "for the purpose of demonstrating the intention on the part of the deceased that
she not die intestate." Of all this extrinsic evidence only the following infinitesimal portion of
Quinn's testimony relates to care of the dog: "Q. [Counsel for Quinn] Prior to the first Roxy's death
did you ever discuss with Miss Russell taking care of Roxy if anything should ever happen to her?
A. Yes."plaintiff carefully preserved an objection running to all of the above line of testimony and
at the conclusion of the hearing moved to strike such evidence. Her motion was denied.

The trial court found, so far as is here material, that it was the intention of the testatrix "that
Chester H. Quinn was to receive her entire estate, excepting the gold coin and diamonds
bequeathed to" plaintiff and that Quinn "was to care for the dog, Roxy Russell, in the event of
Testatrix's death. The language contained in the Will concerning the dog, Roxy Russell, was
precatory in nature only, and merely indicative of the wish, desire and concern of Testatrix that
Chester H. Quinn was to care for the dog, Roxy Russell, subsequent to Testatrix's death." fn. 4
The court concluded that testatrix [69 Cal. 2d 205] intended to and did make an absolute and
outright gift to Mr. Quinn of all the residue of her estate, adding: "There occurred no lapse as to
any portion of the residuary gift to Chester H. Quinn by reason of the language contained in the
Will concerning the dog, Roxy Russell, such language not having the effect of being an attempted
outright gift or gift in trust to the dog. The effect of such language is merely to indicate the
intention of Testatrix that Chester H. Quinn was to take the entire residuary estate and to use
whatever portion thereof as might be necessary to care for and maintain the dog, Roxy Russell."
Judgment was entered accordingly. This appeal followed.

Plaintiff's position before us may be summarized thusly: That the gift of one-half of the residue of
the estate to testatrix' dog was clear and unambiguous; that such gift was void and the property
subject thereof passed to plaintiff under the laws of intestate succession; and that the court erred
in admitting the extrinsic evidence offered by Quinn but that in any event the uncontradicted
evidence in the record did not cure the invalidity of the gift.

We proceed to set forth the rules here applicable which govern the interpretation of wills.

[1a] First, as we have said many times: "The paramount rule in the construction of wills, to which
all other rules must yield, is that a will is to be construed according to the intention of the testator
as expressed therein, and this intention must be given effect as far as possible." (Estate of Wilson
(1920) 184 Cal. 63, 66-67 [193 P. 581].) fn. 5 The rule is imbedded [69 Cal. 2d 206] in the
Probate Code. (§ 101.) fn. 6 Its objective is to ascertain what the testator meant by the language
he used. fn. 7

[2a] When the language of a will is ambiguous or uncertain resort may be had to extrinsic evidence
in order to ascertain the intention of the testator. fn. 8 We have said that extrinsic evidence is
admissible "to explain any ambiguity arising on the face of a will, or to resolve a latent ambiguity
which does not so appear." (Estate of Torregano (1960) 54 Cal. 2d 234, [69 Cal. 2d 207] 246 [5
Cal. Rptr. 137, 352 P.2d 505, 88 A.L.R.2d 597], citing § 105.) fn. 9 [3a] A latent ambiguity is one
which is not apparent on the face of the will but is disclosed by some fact collateral to it. (See 4
Page on Wills (Bowe- Parker Rev.) § 32.7, p. 255; Comment: Extrinsic Evidence and the
Construction of Wills in California (1962) 50 Cal.L.Rev. 283, 284-291.)

As to latent ambiguities, this court in the Donnellan case said: "Broadly speaking, there are two
classes of wills presenting latent ambiguities, for the removal of which ambiguities resort to
extrinsic evidence is permissible. The one class is where there are two or more persons or things
exactly measuring up to the description and conditions of the will, ... The other class is where no
person or thing exactly answers the declarations and descriptions of the will, but where two or
more persons or things in part though imperfectly do so answer." (Estate of Donnellan (1912) 164
Cal. 14, 20 [127 P. 166].) fn. 10 Extrinsic evidence always may be introduced initially in order to
show that under the circumstances of a particular case the seemingly clear language of a will
describing either the subject of or the object of the gift actually embodies a latent ambiguity for it
is only by the introduction of extrinsic evidence that the existence of such an ambiguity can be
shown. Once shown, such ambiguity may be resolved by extrinsic evidence. (Estate of Dominici
(1907) 151 Cal. 181, 184 [90 P. 448]; Taylor v. McCowen (1908) 154 Cal. 798, 802 [99 P. 351];
Estate of Donnellan, supra, 164 Cal. 14, 20, 22-24; cf. Estate of Sargavak (1953) 41 Cal. 2d 314,
320 [259 P.2d 897]; Estate of Carter (1956) 47 Cal. 2d 200, 207-208 [302 P.2d 301].)

[2b] A patent ambiguity is an uncertainty which appears on the face of the will. (Estate of
Womersley (1912) 164 Cal. 85, 87 [127 P. 645]; Estate of Willson (1915) 171 Cal. 449, 456-457
[153 P. 927]; Estate of Salmonski (1951) 38 Cal.2d [69 Cal. 2d 208] 199, 214 [238 P.2d 966];
see generally 4 Page on Wills, op.cit. supra, § 32.7, p. 255; Comment: supra, 50 Cal.L.Rev. 283,
284-291.) "When an uncertainty arises upon the face of a will as to the meaning of any of its
provisions, the testator's intent is to be ascertained from the words of the will, but the
circumstances of the execution thereof may be taken into consideration, excluding the oral
declarations of the testator as to his intentions." (Estate of Salmonski, supra, 38 Cal. 2d 199,
214.) fn. 11 This is but a corollary derived from an older formalism. Long before Salmonski it was
said in Estate of Willson, supra, 171 Cal. 449, 456: "The rule is well established that where the
meaning of the will, on its face, taking the words in the ordinary sense, is entirely clear, and where
no latent ambiguity is made to appear by extrinsic evidence, there can be no evidence of extrinsic
circumstances to show that the testatrix intended or desired to do something not expressed in the
will." fn. 12 However, this ancient touchstone has not necessarily uncovered judicial material of
unquestioned purity.

In order to determine initially whether the terms of any written instrument are clear, definite and
free from ambiguity the court must examine the instrument in the light of the [69 Cal. 2d 209]
circumstances surroundings its execution so as to ascertain what the parties meant by the words
used. Only then can it be determined whether the seemingly clear language of the instrument is
in fact ambiguous. "Words are used in an endless variety of contexts. Their meaning is not
subsequently attached to them by the reader but is formulated by the writer and can only be found
by interpretation in the light of all the circumstances that reveal the sense in which the writer used
the words. The exclusion of parol evidence regarding such circumstances merely because the
words do not appear ambiguous to the reader can easily lead to the attribution to a written
instrument of a meaning that was never intended." (Universal Sales Corp. v. California etc. Mfg.
Co. (1942) 20 Cal. 2d 751, 776 [128 P.2d 665] (Traynor, J., concurring).) [4] "The court must
determine the true meaning of the instrument in the light of the evidence available. It can neither
exclude extrinsic evidence relevant to that determination nor invoke such evidence to write a new
or different instrument." (Laux v. Freed (1960) 53 Cal. 2d 512, 527 [2 Cal. Rptr. 265, 348 P.2d
873] (Traynor, J., concurring); see also Corbin, The Interpretation of Words and the Parol Evidence
Rule (1965) 50 Cornell L.Q. 161, 164: "[W]hen a judge refuses to consider relevant extrinsic
evidence on the ground that the meaning of written words is to him plain and clear, his decision
is formed by and wholly based upon the completely extrinsic evidence of his own personal
education and experience"; Corbin, op.cit. supra, pp. 189-190; Farnsworth, "Meaning" in the Law
of Contracts (1967) 76 Yale L.J. 939, 957-965; Holmes, The Theory of Legal Interpretation (1899)
12 Harv.L.Rev. 417, 420; Rest., Contracts, § 230, coms. a, b, § 235, cls. (a), (d), coms. a, f, §
238, cl. (a), com. a, § 242, com. a; 3 Corbin on Contracts (1960) § 535, pp. 17-21, § 536, pp.
27-30 et seq.; 4 Page on Wills, op.cit. supra, § 30.8, p. 59, § 32.1, pp. 232-233, § 32.2 pp. 236-
237; 9 Wigmore on Evidence (3d ed. 1940) § 2470 et seq.; 4 Williston on Contracts (3d ed. 1961)
§ 610, pp. 499-503; § 610A, pp. 517-519, § 629, pp. 923-925; Witkin, Cal. Evidence (2d ed.
1966) § 730, p. 675 et seq.)

The foregoing reflects the modern development of rules governing interpretation, for in the words
of Wigmore "The history of the law of Interpretation is the history of a progress from a stiff and
superstitious formalism to a flexible rationalism." (9 Wigmore, op.cit. supra, § 2461, p. 187.)
While "still surviving to us, in many Courts, from the old formalism ... [is] the rule that you cannot
disturb a plain [69 Cal. 2d 210] meaning" (9 Wigmore, op.cit. supra, p. 191, original emphasis)
nevertheless decisions and authorities like those cited above bespeak the current tendency to
abandon the "stiff formalism of earlier interpretation" and to show the meaning of words even
though no ambiguity appears on the face of the document.

There is nothing in these rules of interpretation which confines their application to contracts.
Indeed quite the contrary. The rules are a response to "problems which run through all the
varieties of jural acts," are therefore not necessarily solvable separately for deeds, contracts and
wills, are not peculiar to any one kind of jural act, but involve a general principle applicable to all.
(9 Wigmore, op.cit. supra, § 2401, pp. 6-7, § 2458, pp. 179-181, § 2463, § 2467.) Thus Wigmore
says: "In the field of wills, where there is none but the individual standard fn. [13] of meaning to
be considered, this principle is seen in unrestricted operation; ..." fn. 14 (§ 2470, p. 228.)

Accordingly, we think it is self-evident that in the interpretation of a will, a court cannot determine
whether the terms of the will are clear and definite in the first place until it considers the
circumstances under which the will was made so that the judge may be placed in the position of
the testator whose language he is interpreting. (Cf. Code Civ. Proc., [69 Cal. 2d 211] § 1860.) fn.
15 Failure to enter upon such an inquiry is failure to recognize that the "ordinary standard or 'plain
meaning,' is simply the meaning of the people who did not write the document." (9 Wigmore,
op.cit. supra, § 2462, p. 191.)

Thus we have declared in a slightly different context that extrinsic evidence as to the
circumstances under which a written instrument was made is " 'admissible to interpret the
instrument, but not to give it a meaning to which it is not reasonably susceptible' (Coast Bank v.
Minderhout, 61 Cal. 2d 311, 315 [38 Cal. Rptr. 505, 392 P.2d 265]; ...), and it is the instrument
itself that must be given effect. (Civ. Code, §§ 1638, 1639; Code Civ. Proc., § 1856.)" (Parsons
v. Bristol Dev. Co. (1965) 62 Cal. 2d 861, 865 [44 Cal. Rptr. 767, 402 P.2d 839].) fn. 16 "If the
evidence offered would not persuade a reasonable man that the instrument meant anything other
than the ordinary meaning of its words, it is useless." (Estate of Rule (1944) 25 Cal. 2d 1, 22 [152
P.2d 1003, 155 A.L.R. 1319] (Traynor, J., dissenting), disapproved on other grounds, Parsons v.
Bristol Dev. Co., supra, 62 Cal. 2d 861, 866, fn. 2.) fn. 17 [3b] On the other hand an ambiguity
is said to exist when, in the light of the circumstances surrounding the execution of an instrument,
"the written language is fairly susceptible of two or more constructions." (Hulse v. Juillard Fancy
Foods Co. (1964) 61 Cal. 2d 571, 573 [39 Cal. Rptr. 529, 394 P.2d 65]; Nofziger v. Holman (1964)
61 Cal.2d [69 Cal. 2d 212] 526, 528 [39 Cal. Rptr. 384, 393 P.2d 696]; Coast Bank v. Minderhout
(1964) 61 Cal. 2d 311, 315 [38 Cal. Rptr. 505, 392 P.2d 265], citing cases; see Pacific Gas & E.
Co. v. G. W. Thomas Drayage etc. Co., ante, p. 40.)

As we have explained, what is here involved is a general principle of interpretation of written

instruments, applicable to wills as well as to deeds and contracts. Even when the answer to the
problem of interpretation is different for different kinds of written instruments, "it appears in all
cases as a variation from some general doctrine." (9 Wigmore, op.cit. supra, § 2401, p. 7.) Under
the application of this general principle in the field of wills, extrinsic evidence of the circumstances
under which a will is made (except evidence expressly excluded by statute) fn. 18 may be
considered by the court in ascertaining what the testator meant by the words used in the will. If
in the light of such extrinsic evidence, the provisions of the will are reasonably susceptible of two
or more meanings claimed to have been intended by the testator, "an uncertainty arises upon the
face of a will" (§ 105) and extrinsic evidence relevant to prove any of such meanings is admissible
(see § 106), fn. 19 subject to the restrictions imposed by statute (§ 105). [5a] If, on the other
hand, in the light of such extrinsic evidence, the provisions of the will are not reasonably
susceptible of two or more meanings, there is no uncertainty arising upon the face of the will (§
105; see Estate of Beldon (1938) 11 Cal. 2d 108, 117 [77 P.2d 1052]; Estate of Pierce (1948) 32
Cal. 2d 265, 272 [196 P.2d 1]; Estate of Carter, supra, 47 Cal. 2d 200, 207) and any proffered
evidence attempting to show an intention different from that expressed by the words therein,
giving them the only meaning to which they are reasonably susceptible, is inadmissible. In the
latter case the provisions of the will are to be interpreted according to such meaning. In short, we
hold that while section 105 delineates the manner of ascertaining the testator's [69 Cal. 2d 213]
intention "when an uncertainty arises upon the face of a will," it cannot always be determined
whether the will is ambiguous or not until the surrounding circumstances are first considered.

[1b] Finally, before taking up testatrix' will, we add a brief word concerning our proper function
on this appeal. This function must subserve the paramount rule that the "will is to be construed
according to the intention of the testator." (See fns. 5 and 6, ante, and accompanying text.) [6]
As we said in Parsons v. Bristol Dev. Co., supra, 62 Cal. 2d 861, 865, it is "solely a judicial function
to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic
evidence." (See fn. 8, ante.) Accordingly, "an appellate court is not bound by a construction of a
document based solely upon the terms of the written instrument without the aid of extrinsic
evidence, where there is no conflict in the evidence, or a determination has been made upon
incompetent evidence. [Citations.]" (Estate of Wunderle (1947) 30 Cal. 2d 274, 280 [181 P.2d
874]; see Estate of Donnellan, supra, 164 Cal. 14, 19; Estate of Platt (1942) 21 Cal. 2d 343, 352
[131 P.2d 825]; Parsons v. Bristol Dev. Co., supra, 62 Cal. 2d 861, 865.)

We said in Estate of Beldon, supra, 11 Cal. 2d 108, 111-112, " 'The making of a will raises a
presumption that the testator intended to dispose of all his property. Residuary clauses are
generally inserted for the purpose of making that disposition complete, and these clauses are
always to receive a broad and liberal interpretation, with a view of preventing intestacy as to any
portion of the estate of the testator, and this general rule is in harmony with the declaration of
our code that the provisions of a will must be construed, if possible, so as to effect that purpose.'
(O'Connor v. Murphy, 147 Cal. 148, 153 [81 P. 406].) But there is no room for application of the
rule if the testator's language, taken in the light of surrounding circumstances, will not reasonably
admit of more than one construction. ... If [testator] used language which results in intestacy,
and there can be no doubt about the meaning of the language which was used, the court must
hold that intestacy was intended." [5b] Therefore, if having ascertained in the instant case that
the provisions of the will are not reasonably susceptible of two or more meanings, we conclude
that the only meaning to which the words expressed by testatrix are reasonably susceptible results
in intestacy, we must give effect to her will accordingly. (Estate of Beldon, supra, [69 Cal. 2d 214]
11 Cal. 2d 108, 112; Estate of Akeley (1950) 35 Cal. 2d 26, 32 [215 P.2d 921, 17 A.L.R.2d 647]
(Traynor, J. dissenting); Estate of Barnes (1965) 63 Cal. 2d 580, 583-584 [47 Cal. Rptr. 480, 407
P.2d 656].)
[7a] Examining testatrix' will in the light of the foregoing rules, we arrive at the following
conclusions: Extrinsic evidence offered by plaintiff was admitted without objection and indeed
would have been properly admitted over objection to raise and resolve the latent ambiguity as to
Roxy Russell and ultimately to establish that Roxy Russell was a dog. Extrinsic evidence of the
surrounding circumstances fn. 20 was properly considered in order to ascertain what testatrix
meant by the words of the will, including the words: "I leave everything I own Real & Personal to
Chester H. Quinn & Roxy Russell" or as those words can now be read "to Chester H. Quinn and
my dog Roxy Russell."

However, viewing the will in the light of the surrounding circumstances as are disclosed by the
record, we conclude that the will cannot reasonably be construed as urged by Quinn and
determined by the trial court as providing that testatrix intended to make an absolute and outright
gift of the entire residue of her estate to Quinn who was "to use whatever portion thereof as might
be necessary to care for and maintain the dog." No words of the will gave the entire residuum to
Quinn, much less indicate that the provision for the dog is merely precatory in nature. Such an
interpretation is not consistent with a disposition which by its language leaves the residuum in
equal shares to Quinn and the dog. A disposition in equal shares to two beneficiaries cannot be
equated with a disposition of the whole to one of them who may use "whatever portion thereof as
might be necessary" on behalf of the other. (See § 104; cf. Estate of Kearns (1950) 36 Cal. 2d
531, 534-536 [225 P.2d 218].) [8] Neither can the bare language of a gift of one-half of the
residue to the dog be so expanded as to mean a gift to Quinn in trust for the care of the dog, there
being no words indicating an enforceable duty upon Quinn to do so or indicating to whom the trust
property is to go upon termination of the trust. "While no particular form of expression is necessary
for the creation of a trust, nevertheless some expression of intent to that end is requisite." (Estate
of Doane, supra, 190 Cal. 412, 415; see § 104; [69 Cal. 2d 215] Estate of Marti (1901) 132 Cal.
666, 669 [61 P. 964, 64 P. 1071]; Estate of McCray (1928) 204 Cal. 399, 402 [268 P. 647]; Estate
of Sargavak, supra, 41 Cal. 2d 314, 319, citing cases.)

[7b] Accordingly, since in the light of the extrinsic evidence introduced below, the terms of the
will are not reasonably susceptible of the meaning claimed by Quinn to have been intended by
testatrix, the extrinsic evidence offered to show such an intention should have been excluded by
the trial court. fn. 21 Upon an independent examination of the will we conclude that the trial
court's interpretation of the terms thereof was erroneous. Interpreting the provisions relating to
testatrix' residuary estate in accordance with the only meaning to which they are reasonably
susceptible, we conclude that testatrix intended to make a disposition of all of the residue of the
estate to Quinn and the dog in equal shares; therefore, as tenants in common. (§ 29; Estate of
Hittell (1903) 141 Cal. 432, 434-436 [75 P. 53]; Estate of Murphy (1909) 157 Cal. 63, 66-72 [106
P. 230, 137 Am.St.Rep. 110]; Estate of Kunkler (1912) 163 Cal. 797, 800 [127 P. 43]; Noble v.
Beach (1942) 21 Cal. 2d 91, 94 [130 P.2d 426].) As a dog cannot be the beneficiary under a will
(§ 27; see 1 Page on Wills, op.cit. supra, § 17.21, p. 851) the attempted gift to Roxy Russell is
void. fn. 22 (§ 27; Estate of Burnison (1949) 33 Cal. 2d 638, 646 [204 P.2d 330], affd. 339 U.S.
87 [94 L. Ed. 675, 70 S. Ct. 503]; Estate of Doane, supra, 190 Cal. 412.)

There remains only the necessity of determining the effect of the void gift to the dog upon the
disposition of the residuary estate. [9] That portion of any residuary estate that is the subject of
a lapsed gift to one of the residuary beneficiaries remains undisposed of by the will and passes to
the heirs-at-law. (§§ 92, 220; Estate of Hittell, supra, 141 Cal. [69 Cal. 2d 216] 432, 437; Estate
of Kunkler, supra, 163 Cal. 797, 800; Estate of Hall (1920) 183 Cal. 61, 63 [190 P. 364].) The
rule is equally applicable with respect to a void gift to one of the residuary beneficiaries. (§ 220;
see 96 C.J.S., Wills, § 1226; 53 Cal.Jur.2d, Wills, § 271, p. 531.) [7c] Therefore, notwithstanding
testatrix' expressed intention to limit the extent of her gift by will to plaintiff (see Estate of Barnes,
supra, 63 Cal. 2d 580, 583) one-half of the residuary estate passes to plaintiff as testatrix' only
heir-at-law (§ 225). We conclude that the residue of testatrix' estate should be distributed in equal
shares to Chester H. Quinn and Georgia Nan Russell Hembree, testatrix' niece.

The judgment is reversed and the cause is remanded with directions to the trial court to set aside
the findings of fact and conclusions of law; to make and file findings of fact and conclusions of law
in conformity with the views herein expressed; and to enter judgment accordingly. Such findings
of fact, conclusions of law and judgment shall be prepared, signed, filed and entered in the manner
provided by law.plaintiff shall recover costs on appeal.

Traynor, C. J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

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.1äwphï1.ñët

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.1äwphï1.ñët

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, oppositors-appellants 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, Congress deleted 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.