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[ GR No. 5939, Mar 29, 1911 ]



19 Phil. 238

[ G. R. No. 5939, March 29, 1911 ]




This is a proceeding to compel the payment of a legacy. The legacy over which this action arose  was bequeathed to Felisa Hernandez, who died before the  testatrix, leaving surviving her the petitioners in this case her only  heirs at law and next of kin.   The testatrix did not alter her will in  respect to this legacy after the death of the legatee, although she was cognizant thereof, the deceased legatee being a near relation.

Opposition to the payment of this legacy was made by the executor of the will upon the ground that the. legacy having been to Felisa Hernandez and she having died before  the testatrix, the legacy necessarily lapsed because, under  the provisions of the Civil Code, the heirs and next  of kin of a deceased person take only such  property as was  vested in the deceased at the time of his death; that the legacy  not having vested before  the  death of  the legatee such legatee had no interest therein which could pass  to her heirs and next of kin.

The petitioners rely for relief, and  for escape from said provisions of the Civil Code, upon section 758 of the Code of Civil Procedure.  That section reads  as follows:
"When a devise or  a legacy is made to a child or other relation to the testator,  and the  devisee  or  legatee dies before  the testator, leaving issue  surviving the testator, such  issue shall take the estate so  given  as the devisee or legatee would have done, if he had survived the testator, unless a different disposition is required by law."
The executor asserts that this provision  of the code is inapplicable by reason of the fact  that it is in direct  opposition to express provisions of the  Civil Code above  referred to, and that said section having as  a part thereof the sentence, "unless a different disposition is required  by law," indicates clearly and  necessarily that it was  the  intention of said section to exclude from its  operation said provisions of the  Civil Code.

In  our opinion  this construction  would repeal and annul the section absolutely.  The sole and  whole object of  the section is to avoid the effects of the very provisions  of  the Civil Code referred to. No other  purpose is possible.   It could not have been, then, the intention of  the legislature to destroy by said section the force of said provisions and, in the very section destroying those provisions, incorporate a  sentence resuscitating  them.   It would amount  to  an absurdity to say that the legislature enacted a law and repealed it at the same time.

If the petitioners are not entitled to the payment of this legacy, then section 758 has absolutely no value and can produce  no results.  It might  as well  never  have been written.  It is a most flagrant violation of the rules of statutory construction to give to a statute a  meaning which, in effect and in reality, repeals it altogether, where any other reasonable construction is possible.   (Farmers Bank vs. Hale, 59 N. Y., 53, 59; Sutherland, Statutory  Construction, paragraph 221.)

We do not now decide what is the meaning of the phrase referred to, nor to what it refers.  That is unnecessary to a decision of the case before us.   We now simply hold that it will not bear the  construction given to it by the opponents of the motion before us.

We are of the opinion that the order of  the court below requiring the payment of the legacy as  petitioned  is correct under the law and  must be affirmed.

The judgment appealed from  is, therefore, affirmed, with costs.

Carson and Trent, JJ., concur.

Johnson,  J.,  concurs in the result.



Though the  undersigned respects  the majority opinion concerning this most important question of law decided in the preceding decision, he can  not be convinced that, by section 758 of the Code of Civil Procedure, various articles of the Civil Code - a collection  of substantive laws which comprises an entire,  complete system of legislation on the testate and intestate succession of a deceased person and on the: rights established by statute, as well those pertaining to heirs by force of law, to voluntary heirs,  and to different kinds of legatees  recognized by  law - were repealed.

The said section of the Code of Civil Procedure provides:
"Devisee dying before testator. - When a devise or a legacy is made to a child or other relation to the testator, and the devisee or legatee dies before the testator, leaving issue surviving the testator  such issue  shall take the estate so given as the devisee or legatee would have done, if he had survived the testator, unless a different disposition  is required by law."
In none of the sections of the said Code of Procedure does there exist, in my opinion, any provision whatever contrary to that of the above section, but there are in force various articles of the Civil Code which are entirely opposed to the provisions, partly, of the  said section  758, and I say partly because I do not wish to refer to the legacy left by a testator to his son, inasmuch as this latter, according to the Civil Code, is his heir by force of law.

My objection concerns that other relative and legatee who should die before the testator and whose descendants surviving him  are  entitled, according to the said section 758, to inherit from the said testator and to succeed him in his estate, as if they themselves were his legatees; because this provision is entirely opposed to various articles of the Civil Code  which should be respected, as ordered in that very section 758 by the words "unless a different disposition is required  by law," therein contained.

The plaintiffs who claim the legacy made by the testatrix, Vicenta Hernandez, in behalf of their mother, Felisa Hernandez, a niece of the former, exercise the right of the heirs or successors of the said  legatee, and not that of the successors of the testatrix, and as the said legatee died before the testatrix  and, therefore, could not have  acquired any right whatever to the said legacy, on account of her having died before the testatrix, it is not  understood how the aforementioned plaintiffs have been able to acquire a right to the legacy bequeathed  to  their mother, when she herself, during her lifetime, could  not acquire  such a  right to the said legacy, inasmuch as no provision was made in the will that, in case of the death of the legatee, her children should succeed her in the legacy as if they  were the legatees themselves.  The right  of the legatee  is equal to that of the voluntary heir, and article 766 of the Civil Code prescribes:
"A voluntary heir, who should die before the testator, the person disqualified to inherit, and the person who renounces the inheritance, do not transmit any rights to their heirs, excepting the provisions of articles  761 and 857."
These exceptions do not refer to  the case of an heir who dies before the testator.

So that the legatee who dies before the testator, as he acquired no right whatever to the legacy, could not in turn transmit such a right to his heirs;  he could, while he lived, have entertained the hope of receiving the legacy after the death of the testator, but, in the case at bar, that hope could not be  converted into realization because, when the  legatee died, the owner of the property out  of which the legacy was to  be made, still lived,  and  the premature  death  of  the legatee invalidated her right and she was unable to transmit it to her successors, in this case the children of Felisa Hernandez who claim the legacy of the  P2,000 to which legacy their deceased mother was unable to acquire any right whatever, and, therefore, could transmit none to them, for the testatrix was still living.

With respect to the right of representation, article 924 of the Civil Code provides:
"The right which all the relatives of a person have to succeed him in all the rights which he would have if alive, or which he might have inherited, is called the right of representation."
Article 925 of the same code prescribes:
"The right of representation shall always take place  in the direct  descending line, but never in the ascending.

"In the collateral  line it shall take place only in favor of the children of brothers or sisters,  whether they be  of the whole or half blood."
The plaintiffs are children  of the legatee,  Felisa Hernandez, a niece of the testatrix, and  therefore can not allege any right  whatever of representation with respect  to the legacy which their said mother, the legatee, could not receive, because she died before the testatrix, who was only an aunt of hers.

With regard to the question at issue, it must be borne in mind that civil  personality is extinguished by the death of the persons.  (Art. 32, Civil Code.)   The act by which a person disposes of all  his property or of a part of it, to take effect after his death,  is called a will.   (Art. 667 of the same code.)   The rights to the succession of a person are transmitted from the moment of his death.   (Art. 657 of the same code.)   The plaintiffs were unable to allege what right could have been transmitted to them by their mother Felisa Hernandez at the moment of her death, in support of their present claim for the legacy left  by the testatrix who survived the said Hernandez.

The case at bar concerns a pure and simple legacy, without condition whatever nor term for its delivery,  and, with respect to this class of legacies, article 881 of the Civil Code prescribes:
"A legatee acquires a right to the pure and simple legacy from the death of the testator, and transmits it to his heirs."
The  legatee,  Felisa  Hernandez, having  died  before  the testatrix, Vicenta  Hernandez, she, the former, could  not transmit  to her children  any right in  the legacy  of  the P2,000 which the latter left in her will.

All the requirements  of the said articles and others of the Civil Code, which are in perfect harmony one with another, and form one methodic  set of provisions relative to the testate  or intestate  succession of a deceased person and  to the right to inherit by will or by force of law, are those which  were expressly  respected  by the words  "unless a different disposition is  required by law," contained in  the said section 758 which, while it is in accord with the substantive law as regards the  legitimate successor of the child and recognizes the right of  representation of the nephew of the testator, appears to be in manifest conflict with the said law as regards a relative, as in the  case of Felisa Hernandez where  her children after her death, which occurred while the testatrix was still  living, now claim to be entitled  to, receive the legacy left by the latter, not to them, but to their mother, for whom the law allows no right of representation in connection with the said legacy.

The  said Act No. 190 lacks a preamble, and even if it had one it would still be inexplicable because, immediately following  the provision contained in  the said section 758, which  destroys  categorical provisions of  the  Civil  Code, and in the last  lines thereof appear the words "unless a different disposition is required by  law."  If we are  to regard the sense and meaning of these words, we  can not but understand that provisions of  the Civil Code  must be observed and complied with that are  notably contrary and opposed to that contained  in the  oft-cited article 758 of the  Code of  Civil  Procedure, which code can not properly repeal various articles of the Civil Code by  the proviso contained  at  the end thereof.   The plaintiffs are not testamentary legatees by virtue of the aforesaid will of Vicenta Hernandez.

For the  foregoing reasons it should  have  been decided, in our opinion, and found that,  with a reversal  of the judgment appealed from,  the plaintiffs, the children of Felisa Hernandez, are not entitled to receive by right of representation the legacy  left by Vicenta Hernandez in her  will, and, therefore, the plaintiffs' prayer should have been  denied, without special finding as to the costs.