SANTIAGO DEGALA, PLAINTIFF AND APPELLEE, VS. CECILIA REYES, AND VALENTIN UMIPIG, DEFENDANTS AND APPELLANTS.

During the pendency of the appeal from the order of the Court of
First Instance of Ilocos Sur probating a will executed by the late
Placida Mina of Santa Maria, Ilocos Sur on April 22, 1927, Santiago
Degala, alleging that he is one of the legal heirs of said Placida
Mina, filed a petition with the court praying that the provisions of
said will and testament creating a trust be declared null and void
because there is no cestui que trust named therein, under Rule 66 on Declaratory judgment.

The said will provides, among others, the following:

“SEGUNDO.—Las rentas o productos de mis terrenos,
casas.y animales con excepcion de las parcelas de terreno arriba
menoionadas so aplicaran al pago de amillaramiento de mis propiedades,
para la reparacion y continuacion de la const rue oionri de mis dos
casas de mamposteria que estan frente a frente, y para la realizacion
de las misas dispuestas en este testaments; y caso de que sobrare algo
se dispondra, en caso necesario, para ayadar en los gastos de la
reparacion de la iglesia, convento y la antigua capilla del cementerio
romano de Santa Maria y la iglesia de Burgos.

“OCTAVO.—Ordeno que todos los años empezando desde
mi muerte se celebren misas cantadas an las fechas del dia da mi
nacimiento y muerte, en sufragio de mi alma, de las de mis parientes
mencionadas al comienzo de este testamento y de las de mis difuntos
abuelos Santiago Mina y Plorentina Degala, padre y madre de mi padre, y
de las de.Mariano Direeto y Anastacia Peralta, padre y madre de mi
madre.”

The only persons who were made party defendants in tne petition for
declaratory judgment are Cecilia Reyes, petitioner for the probate of
the will in Case No. 3689, Valentin Umipig, special administrator of
the estate of the deceased appointed by the court, and Leona Leones and
Cipriana Alcantara named as trustees under the will.

After the hearing of the petition, the Court of First Instance of
Ilocos Sur held that if it were not the unanimous desire of all the
parties that the court declare, once and for all whether certain
provisions of the will are null aid void or not, it would dismiss the
petition for declaratory judgment in accordance with American
precedents because the judgment of the lower court probating the will
was then still pending appeal in the Supreme Court. But in view of such
unanimous desire the court declared’, among others, that the above
quoted provisions of the will creating a fideicomiso or trust are null
and void, because the testatrix has not named the first heir or cestui que trust and because they are contrary to the law on perpetuities.

The defendants Cecilia Reyes and Valentin Umipig appealed from the said judgment to this court.

The appellants in a well written brief contend (1) that the
provisions in the will or testament of the late Placida Mina which
leave certain properties of the testatrix for the saying of masses for
the soulof the testatrix and her relatives, and for the maintenance and
repair of the church, convent and the old chapel of the Roman Catholic
cemetery of Sta. Maria and of the church of Burgos, Ilocos Sur, create
a charitable and religious trust; and this court in the case of
Government of the P. I. vs. Abadilla, (46 Phil. 642, 647),
quoting Perry on Trusts, held that in regard to private trust it is not
always necessary that the cestui que trust should be in esse
at the time the trust is created in his favor, and that in charitable
trust the rule is still further relaxed. And (2) as to prohibition to
alienate the properties in trust, Art. 785 of the Civil Code provides
that in fiduciary substitutions “dispositions, imposing perpetual
prohibition and temporary prohibition beyond the limits fixed by Art.
781” are inoperative; and that Art. 792 prescribes that impossible
conditions and those contrary to law and good morals imposed in
testamentary disposition shall be considered as not imposed, and shall
not prejudice the heir or legatee in any manner whatsoever, even should
the testator otherwise provide.

It is obvious that the Roman Catholic church or its legal
representative the Roman Catholic Bishop of Nueva Segovia has interest
in defending the validity of the trust created in the will and its
interest would be affected by the declaration of nullity of the trust.
Section 3, Rule 66, of the Rules of Court provides that “when
declaratory relief is sought, all persons shall be made parties who have
or claim any interest which would be affected by the declaration, and
no declaration shall, except as otherwise provided in these rules,
prejudice the rights of persons not parties to the action.” The
nonjoinder of necessary parties would deprive the declaration of that
final and pacifying function it is calculated to subserve, as they
would not be bound by the declaration and may raise the identical issue
(Hoskyns vs. National City Bank of New York, 85 Phil., 201.)
“And the absence of a defendant with such adverse interest is a
jurisdictional defect, and no declaratory judgment can be rendered”
(Corpus Juris Secundum, Vol. I, p. 1049). But the Roman Catholic Church
or its legal representative was not included as party defendant in the
present case.

In view of the foregoing,, the Judgment appealed from in so far
it declares the trust under consideration null and void, is set aside,
without pronouncement as to costs.

Moran, C.J., Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo, and Bautista, JJ., concur.