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 RI…

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 devisces in the will were the testator’s 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 municipio de Guimba de la provincia 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; Titulo Num.
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 eclesiastica 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 Teologia, 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 el despoja
este legado, y la administracion de esto pasara a cargo del actual Parroco
y sus sucesores de la Iglesia Catolica de Victoria, Tarlac.

“Y en intervalo
de tiempo que no haya legatario acondicionado segun lo arriba queda expresado,
pasara la administracion de
este legado
a cargo del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.

“El Parroco
administrador de estate legado,
acumulara anualmente todos los productos
que puede tener estate legado, ganando o sacando de los productos anuales
el CINCO (5) por ciento para su administracion,
y los derechos correspondientes de las VEINTE
(20) Misas rezadas que debiera el Parroco celebrar cada año, depositando
todo lo restante de los productos de estate legado, en un banco, a nombre de estate legado.”

To
implement the foregoing bequest, the administratrix
in 1940 submitted a project of partition containing the following item:

“5. LEGACY OF THE CHURCH

“That it be adjudicated
in favor of the legacy purported to be given to the nearest male relative who
shall take the priesthood, and in the interim to be administered by the actual Catholic Priest
of the Roman Catholic Church of Victoria, Tarlac,
Philippines, or his successors, the real properties herein below indicated, to
wit:

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

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

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

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

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

Judge De Aquino
granted the second 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 declared 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 will, taking into
consideration the circumstances under which it was made”, but excluding
the testator’s oral declarations as to his intention (Art. 789, Civil Code of
the Philippines).

To
ascertain Father Rigor’s intention,
it may be useful to make the following restatement of the provisions of his
will:

1.   That he
bequeathed the ricelands to anyone of his nearest
male relatives who would pursue an ecclesiastical career until his ordination
as a priest.

2.   That
the devisee could not sell the ricelands.

3.   That
the devisee at the inception of his studies in sacred theology could enjoy and
administer the ricelands, and once ordained as a
priest, he could continue enjoying and administering the same up to the time of
his death but the devisee would cease to enjoy and administer the ricelands if he discontinued his studies for the
priesthood.

4.   That
if the devisee became a priest, he would be obligated to celebrate every year
twenty masses with prayers for the repose of the souls of Father Rigor and his
parents.

5.   That
if the devisee is excommunicated, he would be divested of the legacy and the
administration of the ricelands 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 this 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 legal 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 sons 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 belonging 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 carrera eclesiastica” 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 “no nearest 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 will, was likewise
inoperative.

The appellant in contending
that a public charitable trust was constituted by the testator in his favor
assumes that he was a trustee or a substitute devisee.  That contention is untenable.  A reading of the testamentary provisions
regarding the disputed bequest does not support the view that the parish priest
of Victoria was a trustee or a substitute devisee in the
event that the testator was not survived by a nephew who became a priest.

It should be underscored
that the parish priest of Victoria could become a trustee only when the testator’s nephew living at the
time of his death, who desired to become a priest, had not yet entered the
seminary or, having been ordained a priest, he was excommunicated.  Those two contingencies did not arise, and
could not have arisen, in this case because no nephew of the testator
manifested any intention to enter the seminary or ever became a priest.

The Court of Appeals
correctly ruled that this case is covered by article 888 of the old Civil Code,
now article 956, which provides that if “the bequest for any reason should
be inoperative, it shall be merged into the estate, except in cases of substitution
and those in which the right of accretion exists” (“el legado
x x x 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 testate, or that there may be
mixed succession.  The old rule as to the
indivisibility of the testator’s will is no longer valid.  Thus, if a conditional legacy does not take
effect, there will be intestate succession as to the property covered by the
said legacy (Macrohon Ong
Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the
appeal.  The Appellate Court’s decision
is affirmed.  Costs
against the petitioner.

SO
ORDERED.

Fernando, Acting C.J., Barredo, (Acting Chairman), Antonio, Concepcion,
Jr., and Santos, JJ., concur.

Abad Santos, J., did not take part.