DY YIENG SEANGIO, G.R. Nos. 140371-72 and entitled, In the Matter of the Intestate Estate of Segundo C.

Seangio
BARBARA D. SEANGIO v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of
and VIRGINIA D. SEANGIO, Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia
Petitioners, Present: Seangio.

PUNO, J., Chairperson, The facts of the cases are as follows:

- versus - SANDOVAL-GUTIERREZ,
CORONA, On September 21, 1988, private respondents filed a petition for the
AZCUNA, and settlement of the intestate estate of the late Segundo Seangio, docketed
HON. AMOR A. REYES, in her GARCIA, JJ. as Sp. Proc. No. 9890870 of the RTC, and praying for the appointment of
capacity as Presiding Judge, private respondent Elisa D. SeangioSantos as special administrator and
Regional Trial Court, National guardian ad litem of petitioner Dy Yieng Seangio.
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO, Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
ALBERTO D. SEANGIO, ELISA D. Promulgated: opposed the petition. They contended that: 1) Dy Yieng is still very
SEANGIO-SANTOS, VICTOR D. healthy and in full command of her faculties; 2) the deceased Segundo
SEANGIO, ALFONSO D. SEANGIO, executed a general power of attorney in favor of Virginia giving her the
SHIRLEY D. SEANGIO-LIM, November 27, 2006 power to manage and exercise control and supervision over his business
BETTY D. SEANGIO-OBAS and in the Philippines; 3) Virginia is the most competent and qualified to serve
JAMES D. SEANGIO, as the administrator of the estate of Segundo because she is a certified
Respondents. public accountant; and, 4) Segundo left a holographic will, dated
x ---------------------------------------------------------------------------------------- x 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
DECISION intestate proceedings are to be automatically suspended and replaced by
the proceedings for the probate of the will.
AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of a writ On April 7, 1999, a petition for the probate of the holographic will
of preliminary injunction and/or temporary restraining order seeking the of Segundo, docketed as SP. Proc. No. 9993396, was filed by petitioners
nullification of the orders, dated August 10, 1999 and October 14, 1999, before the RTC. They likewise reiterated that the probate proceedings
of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the should take precedence over SP. Proc. No. 9890870 because testate
petition for probate on the ground of preterition, in the consolidated proceedings take precedence and enjoy priority over intestate
cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, proceedings.[2]

The document that petitioners refer to as Segundos 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. 9890870 and SP.
Proc. No. 9993396 were consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of
the probate proceedings[5] 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
Segundos 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. 9993396 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 TESTATORS
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 TESTATORS 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 TESTATORS 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 decedents 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 Segundos 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.
Segundos 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 latters 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 No costs.
will is probated,[13] the disinheritance cannot be given effect.[14] SO ORDERED.

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 Courts opinion, Segundos last expression to bequeath his
estate to all his compulsory heirs, with the sole exception of Alfredo. Also,
Segundo did not institute an heir[16] 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.

Considering that the questioned document is Segundos 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.
441 S.W.2d 132 (1969)
Lucille FISCHER, Appellant, v. Mrs. Martin JOHNSON et al., Appellees.
Court of Appeals of Kentucky.
January 24, 1969.
Rehearing Denied June 20, 1969.
Attorney(s) appearing for the Case
A. Walter Redmon, R. Davis McAfee, Edward T. Ewen, Jr., Louisville, for
appellant.
Henry J. Burt, Jr., Robert C. Hobson, Louisville, for appellees.
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,
KentuckyDear 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.
[441 S.W.2d 134]
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.
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. 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, T-6521 3666 11.9251 18733 3,580.00
anualmente todos los productos que puede tener estate
legado, ganando o sacando de los productos anuales el
Total amount and value — 44.1163 P13,090.00
CINCO (5) por ciento para su administracion, y los
Judge Roman A. Cruz in his order of August 15, 1940, approving the
derechos correspondientes de las VEINTE (20) Misas
project of partition, directed that after payment of the obligations of the
rezadas que debiera el Parroco celebrar cada año,
estate (including the sum of P3,132.26 due to the church of the Victoria
depositando todo lo restante de los productos de estate
parish) the administratrix should deliver to the devisees their respective
legado, en un banco, a nombre de estate legado.
shares.
To implement the foregoing bequest, the administratix in 1940 submitted
It may be noted that the administratrix and Judge Cruz did not bother to
a project containing the following item:
analyze the meaning and implications of Father Rigor's bequest to his
nearest male relative who would study for the priesthood. Inasmuch as
5. LEGACY OF THE CHURCH
no nephew of the testator claimed the devise and as the administratrix
That it be adjudicated in favor of the legacy purported to
and the legal heirs believed that the parish priest of Victoria had no right
be given to the nearest male relative who shall take the
to administer the ricelands, the same were not delivered to that
priesthood, and in the interim to be administered by the
ecclesiastic. The testate proceeding remained pending.
actual Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors, the real
About thirteen years after the approval of the project of partition, or on
properties hereinbelow indicated, to wit:
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),
Title No. Lot Area in Tax Ass.
who should deliver to the church the said ricelands, and further praying
No. Has. Dec. Value
that the possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new administrator was
T-6530 3663 1.6249 18740 P 340.00 appointed. On January 31, 1957 the parish priest filed another petition
for the delivery of the ricelands to the church as trustee.
T-6548 3445-C 24.2998 18730 7,290.00 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
T-6525 3670 6.2665 18736 1,880.00 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 property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra,
by the testator in is favor assumes that he was a trustee or a substitute 51 Phil. 267).
devisee That contention is untenable. A reading of the testamentary
provisions regarding the disputed bequest not support the view that the We find no merit in the appeal The Appellate Court's decision is affirmed.
parish priest of Victoria was a trustee or a substitute devisee in the event Costs against the petitioner.
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 SO ORDERED
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
Estate of Russell , 69 Cal.2d 200 Chester H. Quinn was a close friend and companion of testatrix, who for
[L. A. No. 29418. In Bank. Aug. 19, 1968.] over 25 years prior to her death had resided in one of the living units on
Estate of THELMA L. RUSSELL, Deceased. GEORGIA NAN RUSSELL her property and had stood in a relation of personal trust and confidence
HEMBREE, Plaintiff and Appellant, v. CHESTER H. QUINN, Defendant and toward her. Roxy Russell was testatrix' pet dog which was alive on the
Respondent. date of the execution of testatrix' will but predeceased her. fn. 2plaintiff
COUNSEL is testatrix' niece and her only heir-at-law.
Higgs, Jennings, Fletcher & Mack, Vincent E. Whelan, Gerald J. O'Neill,
Joel C. Estes and Donald R. Lincoln for Plaintiff and Appellant. In her petition for determination of heirship plaintiff alleges, inter alia,
McInnis, Focht & Fitzgerald and James L. Focht for Defendant and that "Roxy Russell is an Airedale dog"; fn. 3 that section 27 enumerates
Respondent. those entitled to take by will; that "Dogs are not included among those
OPINION listed in ... Section 27. Not even Airedale dogs"; that the gift of one-half of
SULLIVAN, J. the residue of testatrix' estate to Roxy Russell is invalid and void; and that
Georgia Nan Russell Hembree appeals from a judgment (Prob. Code, § plaintiff was entitled to such one-half as testatrix' sole heir-at-law.
1240 fn. 1) entered in proceedings for the determination of heirship (§§ At the hearing on the petition, plaintiff introduced without objection
1080-1082) decreeing inter alia that under the terms of the will of Thelma extrinsic evidence establishing that Roxy Russell was testatrix' Airedale
L. Russell, deceased, all of the residue of her estate should be distributed dog which died on June 9, 1958. To this end plaintiff, in addition to an
to Chester H. Quinn. independent witness, called defendant pursuant to former Code of Civil
Thelma L. Russell died testate on September 8, 1965, leaving a validly Procedure [69 Cal.2d 204] section 2055 (now Evid. Code, § 776). Upon
executed holographic will written on a small card. The front of the card redirect examination, counsel for Quinn then sought to introduce
reads: [69 Cal.2d 203] evidence of the latter's relationship with testatrix "in the event that your
"Turn the card Honor feels that there is any necessity for further ascertainment of the
March 18-1957 intent above and beyond the document."plaintiff's objections on the
I leave everything ground that it was inadmissible under the statute of wills and the parole
I own Real & evidence rule "because there is no ambiguity" and that it was
Personal to Chester inadmissible under section 105, were overruled. Over plaintiff's objection,
H. Quinn & Roxy Russell counsel for Quinn also introduced certain documentary evidence
Thelma L. Russell" consisting of testatrix' address book and a certain quitclaim deed "for the
THE REVERSE SIDE READS: purpose of demonstrating the intention on the part of the deceased that
My ($10.) Ten dollar gold she not die intestate." Of all this extrinsic evidence only the following
Piece & diamonds I leave infinitesimal portion of Quinn's testimony relates to care of the dog: "Q.
to Georgia Nan Russell. [Counsel for Quinn] Prior to the first Roxy's death did you ever discuss
Alverata, Geogia [sic]." 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.
McCOMB, J.
I dissent. I would affirm the judgment for the reasons expressed by Mr.
Presiding Justice Brown in the opinion prepared by him for the Court of
Appeal, Fourth Appellate District, Division One (Estate of Russell, 4 Civ.
8740, filed October 16, 1967, certified for non- publication).
FN 1. Hereafter unless otherwise indicated all section references are to
the Probate Code.
FN 2. Actually the record indicates the existence of two Roxy Russells. The
original Roxy was an Airedale dog which testatrix owned at the time she
made her will, but which, according to Quinn, died after having had a fox
tail removed from its nose, and which, according to the testimony of one
Arthur Turner, owner of a pet cemetery, was buried on June 9, 1958.
Roxy was replaced with another dog (breed not indicated in the record
before us) which, although it answered to the name Roxy, was, according
to the record, in fact registered with the American Kennel Club as
"Russel's [sic] Royal Kick Roxy."
FN 3. In his "Petition for Probate of Holographic Will and for Letters of
Administration with the Will Annexed," Quinn included under the names,
ages and residences of the devisees and legatees of testatrix (§ 326, subd.
(3)) the following: "Roxy Russell, A 9 year old Airedale dog, [residing at]
4422 Palm Avenue, La Mesa, Calif."
FN 4. The memorandum decision elaborates on this point, stating in part:
"The obvious concern of the human who loves her pet is to see that it is
properly cared for by someone who may be trusted to honor that
concern and through resources the person may make available in the will
to carry out this entreaty, desire, wish, recommendation or prayer. This,
in other words, is a most logical example of a precatory provision. It is the
only logical conclusion one can come to which would not do violence to
the apparent intent of Mrs. Russell."
The trial court found further: "Testatrix intended that Georgia Nan Russell
Hembree was not to have any other real or personal property belonging
to Testatrix, other than the gold coin and diamonds." This finding also
was elaborated on in the memorandum decision: "In making the will it is
apparent she had Georgia on her mind. While there is other evidence in
the case about Thelma Russell's frame of mind concerning her real
property and her niece, which was admitted by the Court, over counsel's
vigorous objection, because it concerned testatrix' frame of mind, a
condition relevant to the material issue of intent, nevertheless this
additional evidence was not necessary to this Court in reaching its
conclusion." The additional evidence, referred to included an address
book of testatrix upon which she had written: "Chester, Don't let Augusta
and Georgia have one penny of my place if it takes it all to fight it in
Court. Thelma."
FN 5. Accord: Welch v. Huse (1875) 49 Cal. 506, 509; In re Stratton (1896)
112 Cal. 513, 518 [44 P. 1028]; Estate of Marti (1901) 132 Cal. 666, 668-
669 [61 P. 964, 64 P. 1071]; Estate of Lakemeyer (1901) 135 Cal. 28, 29
[66 P. 961, 87 Am.St.Rep. 96]; Kauffman v. Gries (1903) 141 Cal. 295, 299
[74 P. 846]; Estate of Dominici (1907) 151 Cal. 181, 184, 185 [90 P. 448];
Estate of Blake (1910) 157 Cal. 448, 458-459 [108 P. 287]; Estate of
Henderson (1911) 161 Cal. 353, 357 [119 P. 496]; Estate of Spreckels
(1912) 162 Cal. 559, 567 [123 P. 371]; Estate of Sessions (1915) 171 Cal.
346, 349 [153 P. 231]; Estate of Hoytema (1919) 180 Cal. 430, 432 [181 P.
645]; Estate of Ritzman (1921) 186 Cal. 567, 568-569 [199 P. 783]; Estate
of McCurdy (1925) 197 Cal. 276, 282 [240 P. 498]; Estate of Hartson
(1933) 218 Cal. 536, 539 [24 P.2d 171]; Estate of Lawrence (1941) 17
Cal.2d 1, 6 [108 P.2d 893]; Estate of Akeley (1950) 35 Cal.2d 26, 28 [215
P.2d 921, 17 A.L.R.2d 647]; Estate of Kearns (1950) 36 Cal.2d 531, 535
[225 P.2d 218]; Estate of Salmonski (1951) 38 Cal.2d 199, 209 [238 P.2d
966]; Estate of Lefranc (1952) 38 Cal.2d 289, 295- 296 [239 P.2d 617];
Estate of Resler (1954) 43 Cal.2d 726, 732 [278 P.2d 1]; Estate of Johnston
(1956) 47 Cal.2d 265, 269 [303 P.2d 1]; Estate of Thompson (1958) 50
Cal.2d 613, 617 [328 P.2d 1]; Estate of Jones (1961) 55 Cal.2d 531, 536,
538 [11 Cal.Rptr. 574, 360 P.2d 70], disapproved on other grounds,
Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 866, fn. 2 [44 Cal.Rptr.
767, 402 P.2d 839]; Estate of Karkeet (1961) 56 Cal.2d 277, 281 [14
Cal.Rptr. 664, 363 P.2d 896]; Estate of Barnes (1965) 63 Cal.2d 580, 583
[47 Cal.Rptr. 480, 407 P.2d 656].
FN 6. Section 101 in pertinent part provides: "A will is to be construed
according to the intention of the testator. Where his intention cannot
have effect to its full extent, it must have effect as far as possible."
FN 7. Section 163; Estate of Young (1899) 123 Cal. 337, 341-345 [55 P.
1011]; Estate of Tompkins (1901) 132 Cal. 173, 176 [64 P. 268]; Estate of
Fair (1901) 132 Cal. 523, 530 [60 P. 442, 64 P. 1000, 84 Am.St.Rep. 70];
Estate of Dominici (1907) 151 Cal. 181, 185 [90 P. 448]; Estate of Blake
(1910) 157 Cal. 448, 459 [108 P. 287]; Estate of Henderson (1911) 161 Cal.
353, 357 [119 P. 496]; Estate of Spreckels (1912) 162 Cal. 559, 567 [123 P.
371]; Estate of Donnellan (1912) 164 Cal. 14, 19-20 [127 P. 166]; Estate of
Sessions (1915) 171 Cal. 346, 349 [153 P. 231]; Estate of Hoytema (1919)
180 Cal. 430, 432 [181 P. 645]; Estate of Phelps (1920) 182 Cal. 752, 756
[190 P. 17]; Estate of Wilson, supra, 184 Cal. 63, 66-67; Estate of Ritzman
(1921) 186 Cal. 567, 569 [199 P. 783]; Estate of Metcalfe (1926) 199 Cal.
716, 720 [251 P. 202]; Estate of McCray (1928) 204 Cal. 399, 402 [268 P.
647]; Estate of Layton (1933) 217 Cal. 451, 458 [19 P.2d 793, 91 A.L.R.
480]; Estate of Beldon (1938) 11 Cal.2d 108, 112 [77 P.2d 1052]; Estate of
Northcutt (1940) 16 Cal.2d 683, 688, 689 [107 P.2d 607]; Estate of
Axcelrod (1944) 23 Cal.2d 761, 766 [147 P.2d 1]; Estate of Brunet
(1949) 34 Cal.2d 105, 107, 108 [207 P.2d 567, 11 A.L.R.2d 1382]; Estate of
Lefranc (1952) 38 Cal.2d 289, 298 [239 P.2d 617]; Estate of Resler
(1954) 43 Cal.2d 726, 732 [278 P.2d 1].
FN 8. "It is a fundamental and indisputable proposition that wherever
doubt arises as to the meaning of a will, such doubt is resolved by
construction and that construction is one of law,--it is an application of
legal rules governing construction either to the will alone or to properly
admitted facts to explain what the testator meant by the doubtful
language. In those cases where extrinsic evidence is permissible there
may be a conflict in the extrinsic evidence itself, in which case the
determination of that conflict results in a finding of pure fact. But when
the facts are thus found, those facts do not solve the difficulty. They still
are to be applied to the written directions of the will for the latter's
construction, and that construction still remains a construction at law."
(Estate of Donnellan (1912) 164 Cal. 14, 19 [127 P. 166], per Henshaw, J.;
accord: Estate of Platt (1942) 21 Cal.2d 343, 352 [131 P.2d 825]; see
Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767,
402 P.2d 839].)
FN 9. Section 105 provides: "When there is an imperfect description, or
no person or property exactly answers the description, mistakes and
omissions must be corrected, if the error appears from the context of the
will or from extrinsic evidence, excluding the oral declarations of the
testator as to his intentions; and when an uncertainty arises upon the
face of a will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the will, taking into view
the circumstances under which it was made, excluding such oral
declarations."
FN 10. Section 105; accord: 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, 19-21; Estate of Sargavak
(1953) 41 Cal.2d 314, 319-321 [259 P.2d 897]; Estate of Carter (1956) 47
Cal.2d 200, 207-208 [302 P.2d 301].
FN 11. Section 105; accord: In re Hayedenfeldt (1895) 106 Cal. 434, 438-
440 [39 P. 788]; In re Stratton (1896) 112 Cal. 513, 518 [44 P. 1028];
Estate of Young (1899) 123 Cal. 337 342 [55 P. 1011]; Estate of Langdon
(1900) 129 Cal. 451, 453-454 [62 P. 73]; Taylor v. McCowen, supra, 154
Cal. 798, 801-802; Estate of Murphy (1909) 157 Cal. 63, 69 [106 P. 230,
137 Am.St.Rep. 110]; Estate of Carothers (1911) 161 Cal. 588, 591 [119 P.
926]; Estate of Sessions (1915) 171 Cal. 346, 349 [153 P. 231]; Estate of
Hoytema (1919) 180 Cal. 430, 432 [181 P. 645]; Estate of Phelps (1920)
182 Cal. 752, 756 [190 P. 17]; Estate of Carrillo (1921) 187 Cal. 597, 602
[203 P. 104]; Estate of Kurtz (1922) 190 Cal. 146, 149 [210 P. 959],
explained on other grounds, Estate of Duke (1953) 41 Cal.2d 509, 515
[261 P.2d 235]; Estate of Kelleher (1927) 202 Cal. 124, 127-128 [259 P.
437, 54 A.L.R. 913]; Estate of Pierce (1948) 32 Cal.2d 265, 272-274 [196
P.2d 1]; Estate of Kearns (1950) 36 Cal.2d 531, 537 [225 P.2d 218]; Estate
of Sargavak, supra, 41 Cal.2d 314, 319-320; Estate of Resler (1954) 43
Cal.2d 726, 734 [278 P.2d 1]; Estate of Jones (1961) 55 Cal.2d 531, 536
[11 Cal.Rptr. 574, 360 P.2d 70]; Estate of Karkeet (1961) 56 Cal.2d 277,
283 [14 Cal.Rptr. 664, 363 P.2d 896].
FN 12. Sections 104, 106; accord: In re Schedel (1887) 73 Cal. 594, 596-
597 [15 P. 297]; In re Walkerly (1895) 108 Cal. 627, 659, 660 [41 P. 772,
49 Am.St.Rep. 97]; Estate of Tompkins (1901) 132 Cal. 173, 176 [64 P.
268]; Estate of Fair (1901) 132 Cal. 523, 530-532 [60 P. 442, 64 P. 1000, 84
Am.St.Rep. 70]; Estate of Dominici, supra, 151 Cal. 181, 189; Estate of
Blake (1910) 157 Cal. 448, 459 [108 P.2d 287]; Estate of Sessions (1915)
171 Cal. 346, 349- 351 [153 P. 231]; Estate of Watts (1918) 179 Cal. 20, 23
[175 P. 415]; Estate of Phelps (1920) 182 Cal. 752, 756 [190 P. 17]; Estate
of Doane (1923) 190 Cal. 412, 415 [213 P. 53]; Estate of Ryan (1923) 191
Cal. 307, 310 [216 P. 366]; Estate of Salmonski, supra, 38 Cal.2d 199, 213;
Estate of Sargavak, supra, 41 Cal.2d 314, 320-321.
FN [13]. That is "the standard of an individual actor who may use words in
a sense wholly peculiar to himself." (9 Wigmore, op.cit, supra, § 2458, p.
181, § 2467, p. 222.)
FN 14. "The truth had finally to be recognized that words always need
interpretation; that the process of interpretation inherently and
invariably means the ascertainment of the association between words
and external objects; and that this makes inevitable a free resort to
extrinsic matters for applying and enforcing the document. 'Words must
be translated into things and facts.' Instead of the fallacious notion that
'there should be interpretation only when it is needed,' the fact is that
there must always be interpretation. Perhaps the range of search need
not be extensive, and perhaps the application of the document will be
apparent at the first view; but there must always be a traveling out of the
document, a comparison of its words with people and things. The deed
must be applied 'physically to the ground.' Perhaps the standard of
interpretation will limit our search; perhaps the obligation (as some
Courts maintain) to enforce the ordinary standard as against the mutual
or the individual standard ..., or to enforce the mutual as against the
individual standard ..., will render certain data immaterial. But these
restrictions are independent of the present principle. Once freed from
the primitive formalism which views the document as a self- contained
and self-operative formula, we can fully appreciate the modern principle
that the words of a document are never anything but indices to extrinsic
things, and that therefore all the circumstances must be considered
which go to make clear the sense of the words,--that is, their associations
with things." (9 Wigmore, op.cit. supra, p. 227, original emphasis.)
FN 15. "How can we tell whether a will is clear and definite or ambiguous
and uncertain until we know the surrounding facts? If the will would have
one meaning if the surrounding facts were ignored, and a different
meaning if the surrounding facts were taken into consideration, it would
seem that a refusal to consider the surrounding facts whenever testator's
intention seems clear from reading the will without considering the
surrounding facts, would result in ascribing to testator an intention which
he never entertained in fact and which can be shown not to be his
intention by the use of methods of construction which are ordinarily
looked upon as perfectly proper." (4 Page on Wills, op.cit. supra, p. 59.)
FN 16. Accord:pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., ante,
p. 33 [69 Cal.Rptr. 561, 442 P.2d 641]; Continental Baking Co. v. Katz
(1968) 68 Cal.2d 512, 521, 522 [67 Cal.Rptr. 761, 439 P.2d 889]; Nofziger
v. Holman (1964) 61 Cal.2d 526, 528 [39 Cal.Rptr. 384, 393 P.2d 696];
Imbach v. Schultz (1962) 58 Cal.2d 858, 860 [27 Cal.Rptr. 160, 377 P.2d
272]; Laux v. Freed, supra, 53 Cal.2d 512, 525-527 (Traynor, J.,
concurring); Estate of Rule (1944) 25 Cal.2d 1, 20-22 [152 P.2d 1003, 155
A.L.R. 1319] (Traynor, J., dissenting); Universal Sales Corp. v. California
etc. Mfg. Co., supra, 20 Cal.2d 751, 776.
FN 17. We recognize that in contract cases such as Coast Bank and
Parsons, supra, the standard of interpretation is normally the "mutual
standard of parties to a bilateral act" whereas in will cases, such as the
instant one, it is "the individual standard of the testator." (See 9
Wigmore, op.cit, supra, § 2458, p. 181.)
FN 18. As for example, under section 105 (see fn. 9, ante) which
specifically excludes "the oral declarations of the testator as to his
intentions." This opinion does not disturb the statutory proscription
against the use of such evidence.
FN 19. Section 106 provides: "The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention to use them in
another sense can be collected, and that other can be ascertained.
Technical words are not necessary to give effect to any species of
disposition by a will; but technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a contrary intention,
or unless it satisfactorily appears that the will was drawn solely by the
testator, and that he was unacquainted with such technical sense."
FN 20. Excluding however the oral declarations of testatrix as to her
intentions. (§ 105; see fn. 9, ante,; see fn. 18, ante, and accompanying
text.) It is to be noted that no such declarations are herein involved.
FN 21. Having concluded that the extrinsic evidence should have been
stricken from the record, we need not reach plaintiff's second contention
that, even considering such extrinsic evidence, "There is neither jot nor
tittle of evidence ... which would support a finding that Mrs. Russell
intended to leave nothing to her dog." However, it is noteworthy that, as
we pointed out at the beginning of this opinion, the infinitesimal portion
of the extrinsic evidence actually referring to the care of the dog was
devoid of all probative value.
FN 22. As a consequence, the fact that Roxy Russell predeceased the
testatrix is of no legal import. As appears, we have disposed of the issue
raised by plaintiff's frontal attack on the eligibility of the dog to take a
testamentary gift and therefore need not concern ourselves with the
novel question as to whether the death of the dog during the lifetime of
the testatrix resulted in a lapsed gift. (§ 92.)
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.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.
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.

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