AMBROSIA KALAW, PETITIONER AND APPELLEE, VS. ALEJANDRO VIRREY AND CANDIDO LANTING, CONTESTANTS AND APPELLANTS.

Sebastian Virrey, who died in the municipality of Lipa, Batangas, on December
3, 1916, left a holographic will, executed on January 29, 1895. Upon the filing
of this will for probate, the court set the 13th day of January, 1917, for the
hearing, after due publication, and on this date Alejandro Virrey and Candido
Lanting filed an opposition based on the ground that the will could not be
allowed, in accordance with section 617 of the Code of Civil Procedure. Upon the
opening of the session of the court, on the above date, for the hearing of the
probate proceedings on this will, the contestants, represented by their counsel,
objected to the taking of evidence and prayed the court first to decide the
issue raised by them as to whether or not, under the Civil Code, an holographic
will might be allowed after the present Code of Civil Procedure had gone into
effect. The court overruled the objection, ordered the production of evidence
and reserved its decision of the issue in question until the rendering of final
judgment upon the allowance of the will. The contestants entered an exception to
this ruling. During the trial the contestants abstained from cross-examining the
witnesses and from producing their own evidence. On March 19, 1917, the court
rendered judgment, by dismissing the opposition of Alejandro Virrey and Candido
Lanting and allowing the will. To this judgment the contestants also filed an
exception and, in this instance, make the following assignment of errors:

First. The court erred in allowing the probate of the will before
first deciding, as a previous issue, whether or not the so-called
holographic will of the late Sebastian Virrey might be allowed under Act No.
190.

The only provision of law in connection with the probate of wills is that,
upon the filing of a will, the court shall set a date for the hearing thereon,
in which the testimony of all the witnesses presented shall be taken. There is
no provision whatever that requires the court previously to decide upon any
issue raised, much less when such issue refers to a point like the one concerned
in the present case, and which, as the court says, relates to the main subject
matter of the case and should be finally decided. We believe that the court
acted legally in dismissing the contestants’ objection. The taking of the
evidence having been ordered, the contestants were entitled to cross-examine the
petitioner’s witnesses, if they had any cross-examination to make, and to
produce their own evidence, if any they had, and they cannot now complain for
not having done what was in their power to do. Having virtually waived their
opportunity to present evidence, they are not now entitled to ask for another
opportunity, which necessarily would delay the course of these proceedings, to
the prejudice of the parties interested in the will of Sebastian Virrey.

Second. The court erred in dismissing the opposition of Alejandro Virrey
and Candido Lanting, and in allowing to’ probate the will of Sebastian
Virrey.

The contestants allege that, according to section 617 of the Code of Civil
Procedure, only open, sealed and verbal wills executed by a Spaniard, or a
resident of these Islands, before the enforcement of Act No. 190, may be
allowed, to the exclusion of holographic wills. Section 617 reads as
follows:

“Sec. 617. Spanish Wills.—A will executed by a Spaniard, or a
resident of the Philippine Islands, before the date on which this act shall come
into force, shall be valid and allowed, if duly executed in accordance with the
laws before that date prevailing in the Philippine Islands relating to the
execution of wills, whether such will be an open will or a sealed will, or one
termed a verbal will under that law, but such will must be established and the
estate administered in accordance with the provisions of this code.”

The opponents contend that, inasmuch as this provision expressly mentions
open, sealed, and verbal wills, and not holographic wills, it is to be inferred
that those belonging to the last class are excluded. We are of the opinion that
this contention is unfounded, and that it is evident, having in mind the spirit
of this provision, that the legislative intent is to include, not only the open,
sealed, or verbal wills specified in the law, but also any other will executed
in accordance with the laws in force on the date when Act No. 190 was
promulgated. Not only is there no reason to suppose that the legislator intended
to exclude holographic wills from the benefits of the foregoing provision, but
it also appears absurd that he should have intended to include therein the other
kinds of wills, even the one termed “verbal”—which was only allowed in special
circumstances and under special conditions for thet reason of its being the kind
of will having the least guaranty of authenticity— and should have excluded
holographic wills which have a better guaranty of authenticity.

The judgment appealed from is affirmed, with the costs against the
appellants. So ordered.

Torres, Johnson, Street, Malcolm, and Fisher, JJ.,
concur.