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[IN RE WILL OF DECEASED FELISA JAVIER. SULPICIO RESURRECCION v. AGUSTIN JAVIER ET AL.](https://lawyerly.ph/juris/view/c1c74?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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63 Phil. 599

[ G. R. No. 42539, October 23, 1936 ]

IN RE WILL OF THE DECEASED FELISA JAVIER. SULPICIO RESURRECCION, ADMINISTRATOR AND APPELLEE, VS. AGUSTIN JAVIER ET AL., OPPOSITORS AND APPELLANTS.

D E C I S I O N

AVANCEÃ'A, C.J.:

On October 18, 1932, Felisa Francisco Javier made a will instituting her husband Sulpicio Resurreccion as her universal heir and, among other things, left a legacy of P2,000 in favor of her brother Gil Francisco Javier.  The testatrix died on January 22,  1933, and  her will  was  probated on March  8th of said year.

On October 12, 1933, the court, finding that Gil Francisco Javier died in August, 1930,  even before the testatrix made her will, ordered that the legacy of P2,000 in  his favor revert to the fund of the estate.

Gil Francisco Javier's children and heirs, claiming that they are entitled to receive the legacy of P2,000 in favor of their father, appeal from the court's resolution ordering the reversion of this amount  to the funds of the estate.

The important thing to  determine in  this appeal is the effect of a legacy made in favor of a person who was already dead not only before the  death of the  testatrix but even before the will was made.

The testatrix, having no forced heirs, may dispose by will of all her property or any part thereof in favor of any person qualified to acquire it (art. 763, Civil Code).  Upon being instituted as legatee by the testatrix, Gil Francisco Javier lacked civil personality, which is extinguished by death, and, therefore, lacked capacity to inherit  by will on the ground that he could not be the subject of a right (art. 32, Civil Code).   Consequently, his institution as a legatee had absolutely  no legal effect and his heirs are not now  entitled to claim the amount of the legacy.  They cannot even claim under the principle  of  representation because  this takes place only in intestate inheritance.  Furthermore, as the legatee died before the testatrix, he could transmit nothing to his  heirs (art. 766, Civil Code). '

The appellants also contend that the will should be interpreted in the  sense that the intention of the testatrix was to leave the legacy to the heirs of Gil  Francisco Javier.  To this effect they have introduced evidence to show that the testatrix, in making her will, knew that Gil Francisco Javier was already dead.   This  court, however, does not find sufficient evidence to establish this fact.  The only witness who testified to this effect was Agustin Javier, Gil's brother, who alleged that he was in the house of the testatrix in May, 1931, and  in  a conversation with her he  informed her that their brother Gil had  already died, leaving a widow and children.  But against this testimony  was presented that of Sulpicio Resurreccion,  the widower of the testatrix, who testified  that  Agustin  Javier was  in his house only once, in April or May, 1930, prior to the death of the testatrix.   According to this, he could not have  given to the testatrix the information about Gil's death which took place some months later, or in August, 1930.

Furthermore, if the testatrix, in making her will, knew that Gil was already dead and that he had left children, it cannot be explained why she left the legacy to Gil and not to his children, if such  was her intention, particularly because, according to the evidence for the appellants, she knew one of  said  children named  Jose.

Consequently, in either case, whether the testatrix knew that Gil was already dead or  she  was ignorant thereof, as she had left the legacy  in favor of Gil, there  is no  reason to admit that  it was, nevertheless, her intention to leave it to his children.

The appealed judgment is affirmed, with costs to the ap- pellants.  So  ordered.

Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.

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