GR L 9475; (October, 1914)

EN BANC

G.R. No. L-9475; October 6, 1914

JOSE CALDERON, plaintiff-appellee,

vs.
LA PROVINCIA DEL SANTISIMO ROSARIO DE PP. DOMINICOS DE FILIPINAS, defendant-appellant.

Perfecto Gabriel for appellant.
Gibbs, McDonough & Blanco for appellee.

MORELAND, J.:

This is an action brought to recover a legacy bequeathed to the defendant by the will of Maria Cristina Calderon de la Barca which has been duly paid by the administrator of said will and received by the defendant, an order of Dominican friars. The basis of the action is that the bequest was void under article 752 of the Civil Code in that the will in which the bequest is found was made during the last illness of the testatrix and said bequest was in favor of the religious society to which the priest belonged who administered the last rites to the testatrix.

The trial court held the bequest void and ordered the return of the sum paid in pursuance thereof.

It is admitted that the legacy in question, which was one of P3,000, was made by the testatrix during her last illness and that, during said last illness, she was confessed by Friar Ulpiano Herrero, a priest and a member of the community of the defendant and that the testatrix died the day after the confession was made.

The defense is based upon two propositions: First, that article 752 of the Civil Code has been repealed by the provisions of the Code of Civil procedure, especially section 622 thereof; and, second, tat the plaintiff accepted, without objection, the provisions of the will and the distribution of the property thereunder, including the payment of the legacy complained of, and is, therefore, estopped from questioning such distribution and specially the validation of the legacy, the question having, it is claimed, become res judicata by the final order of distribution in the probate proceedings.

Article 752 of the Civil Code reads as follows: “Testamentary provisions made by the testator during his last illness in favor of the priest who took his confession during the same, of the relatives of the latter within the fourth degree, or of his church, chapter, community, or institute shall not be valid.”

Section 622 of the Code of Civil Procedure reads as follows: “When devise or legacy to witness void. — If a person attests the execution of a will, to whom or to whose wife or husband, or parent, or child, a beneficial devise, legacy, or interest, of or affecting real or personal estate, is given by such will, such devise, legacy, or interest shall, so far only as concerns such person, or the wife or husband, or parent or child of such person, or anyone claiming under such person, or such wife or husband, or parent or child, be void, unless there are three other competent witnesses to such will, and such person so attesting shall be admitted as a witness as if such devise, legacy, or interest had not been made or given. But mere charge on the real or personal estate of the testator, for the payment of debts, shall not prevent his creditors from being competent witnesses to his will.”

We are unable to see what bearing section 622 of the Code of Civil Procedure just quoted has upon the question at issue. Before a statute can be held to have repealed a prior statute by implication, it must appear, first, that the two statutes touch the same subject matter, and, second, that the later statute is repugnant to the earlier. Neither one of these conditions is present in the case before us. The article of the Civil Code quoted refers exclusively to testamentary dispositions and the circumstances under which they will be illegal and unenforceable. It has nothing to do with the form or manner of execution of the will or who shall not be witnesses thereto. Section 622 of the Code of Civil Procedure, on the other hand, refers exclusively to the execution of a will. It has nothing to do with the legality of its dispositions except so far as they are affected by the form and manner of its execution.

Moreover, both sections can been applied to the same will. If in the case before us there had been another legacy in the will to a person who was a witness thereto, there would have been presented a case in which both sections would be applicable. Article 752 would be applicable because the will was made during the last illness of the testatrix and the priest who administered the last rites to the deceased was a member of the order that received the legacy. Section 622 would be applicable because one of the witnesses to statutes may be equally applicable to the same will, and neither be in conflict with the other, it is clear that they cannot be repugnant to each other, that they can both stand together, and that, therefore, the one is not impliedly repealed by the other.

Furthermore, as the case now stands, section 622 cannot possibly be applicable, because no one was a witness to the will who received a legacy thereunder. If there can arise a case in which two statutes alleged to be repugnant to each other cannot both be applicable, then it is clear that they do not treat of the same subject matter, are, therefore, not repugnant and, as a necessary consequence, the later does not repeal the earlier.

Coming now to the contention that the validity of the legacy to the defendant has already been determined and that the plaintiff is estopped from questioning such validity, we may say that the evidence shows that the plaintiff was a minor during all of the proceedings leading up to and including the final settlement of the estate of his mother. No guardian ad litem was appointed for him and it does not appear that he was represented by anyone who had authority to bind him.

It is contended, however, that the plaintiff is estopped from maintaining this action in that on the 24th of January, 1911, he signed the following paper: “Now comes Jose Calderon, heir in the above-entitled case, and respectfully represents, that he has examined carefully the statement of account rendered by the administrator, as well as the project of partition, and the bill of the administrator for fees, and believes that the same are just and reasonable.”lawphil.net

The plaintiff insists that in signing said document he believed that he was approving merely the administrator’s accounts and reasonableness of his fees and was not engaged in passing upon the legality of any particular provision of the will or the payment of legacies as ordered by the will or the distribution of the estate as finally made. The wording of the document lends some color to this contention and its date shows that it was executed about one year before the project of partition was made which the plaintiff is supposed to have ratified by said document.

The learned trial court was not satisfied that the plaintiff expressed his conformity with the proposed distribution or the proposed payment of legacies. We agree with the trial court upon this point and also are of the opinion that such approval, if it may be called an approval, is not binding upon the plaintiff, who, at that time, was a minor and was not represented by anyone who was authorized to contract for him. Not being bound by that ratification, the plaintiff, on coming of age, was entitled to attack the provisions of the will if they were void by reason of illegality. He reached the age of 21 on the 2d day of February, 1913, and this suit was instituted on the 24th of the same month. No ratification can be implied from this short lapse of time, in the absence of conduct on the part of the plaintiff indicating clearly an intention to ratify.

The judgment is affirmed, with costs against the appellant.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur.

Batas Pinas