ASUNCION NABLE JOSE ET AL., PLAINTIFFS AND APPELLANTS, VS. MARIA IGNACIA USON ET AL., DEFENDANTS AND APPELLEES.

The question involved in this appeal arises from the interpretation of the
first and second clauses of a codicil to the will of Filomena Uson. They read as
follows:

“First. I declare that all the property which belongs to me as conjugal
property, referred to in my said testament, shall be the property of my
aforesaid husband, Don Rafael Sison; in case all or part of said property exists
at my husband’s death, it is my will that at his death my sisters and nieces
hereinafter named succeed him as heirs.

“Second. I declare to be my sisters in lawful wedlock the persons named Dona
Antonia Uson, now deceased, who has left two daughters called Maria Rosario,
widow, and Maria Paz, unmarried; Maria Romualda Uson, widow of Estanislao
Lengson; Ignacia Uson, married to Don Vicente Puzon; Eufemia Uson, now deceased,
who is survived by three daughters called Maria Salud, Maria Amparo, and Maria
Asuncion; and Maria Pilar Uson; Maria Manaoag Uson, unmarried, issue had by our
deceased father Don Daniel Uson with one Leonarda Fernandez, alias Andao de
Lingayen, so that they may have and enjoy it in equal parts as good sisters and
relatives.”

The court below found that the children of the deceased sisters should take
only that portion which their respective mothers would have taken if they had
been alive at the time the will was made; that the property should be divided
into six equal parts corresponding to the number of sisters; that each living
sister should take one-sixth, and the children of each deceased sister should
also take one-sixth, each one-
sixth to be divided among said children
equally.

This appeal is taken from the judgment entered upon that
finding, appellants asserting that under a proper construction of the paragraphs
of the codicil above-quoted the property should be divided equally between the
living sisters and the children of the deceased sisters, share and share alike,
a niece taking the same share that a sister receives.

We are of the opinion that the appellants’ contention is well founded. We see
no words or phrases in the clauses quoted which lead necessarily to the
construction placed upon those paragraphs by the learned court below. On the
other hand, we find expressions which seem to indicate with fair clearness that
it was the intention of the testatrix to divide her property equally between her
sisters and nieces. The court below based its construction upon the theory that
the other construction would be “an admission that the testatrix desired to
favor her deceased sister Eufemia Uson, who left three children, more than her
other deceased sister Antonia Uson, who left two children, and moreover both
would be more favored than any of the other four surviving sisters, one of whom
was married at the time of the execution of the said codicil-and without doubt
had children.”

As we look at the codicil we observe, first, that the testatrix, in the first
paragraph thereof, declares that after her husband’s death she desires that “my
sisters and nieces, as hereinafter named, shall succeed him as
heirs.”

We note, in the second place, that the testatrix, in the second paragraph of
the codicil, names and identifies each one of her heirs then living, or each one
of the persons whom she desires shall succeed her husband in the property. Among
those mentioned specifically are the nieces as well as-the sisters. The nieces
are referred to in no way different from the sisters. Each one stands out in the
second paragraph of the codicil as clearly as the other and under exactly the
same conditions.

In the third place, we note, with interest, the last clause of the second
paragraph of the codicil which, it seems, to us, taken together with the last
clause of the first paragraph of the codicil, is decisive of the intention of
the testatrix. In the last clause she says that she names all of the persons
whom she desires to take under her will by name “so that they may take and enjoy
the property in equal parts as good sisters and
relatives.“

We have then in the first paragraph a declaration as to who the testatrix
desires shall become the owners of her property on the death of her husband.
Among them we find the names of the nieces as well as of the sisters. We have
also the final declaration of the testatrix that she desires that the sisters
and nieces shall take and enjoy the property in equal parts. That being so, it
appears to us that the testatrix’s intention is fairly clear, so clear in fact
that it is unnecessary to bring in extraneous arguments to reach a conclusion as
to what she intended.

The judgment appealed from is hereby modified by declaring that, of the
property passing under the codicil herein-above referred to, the living sisters
and the children of the deceased sisters shall take per capita and in equal
parts, and as so modified the judgment is affirmed. No costs in this
instance.

Arellano, C. J., Carson and Araullo, JJ., concur.

Trent, J., dissents.