SEANGIO v.

REYES
This is a petition for certiorari1 with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders,
dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of
the RTC, and praying for the appointment of private respondent Elisa D. Seangio
Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No. 98
90870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.2
The document that petitioners refer to as Segundos holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko
at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na
ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]
ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No.
9993396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
the authority of the probate court is limited only to a determination of the extrinsic
validity of the will; 2) private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent;
and, 4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs. 6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio,
et al., clearly shows that there is preterition, as the only heirs mentioned thereat are
Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code
thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854
does not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for respondents
to have tolerated the probate of the will and allowed the case to progress when, on its
face, the will appears to be intrinsically void would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was resolved
(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED.7
Petitioners motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY
AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN
THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE
PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of
a compulsory heir. Thus, there is no preterition in the decedents will and the
holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant; 8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.
Segundos document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is written,
dated and signed by the hand of Segundo himself. An intent to dispose mortis causa[9]
can be clearly deduced from the terms of the instrument, and while it does not make an
affirmative disposition of the latters property, the disinheritance of Alfredo, nonetheless,
is an act of disposition in itself. In other words, the disinheritance results in the disposition
of the property of the testator Segundo in favor of those who would succeed in the
absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed
in the form and within the limits prescribed by law, must be recognized as the supreme
law in succession. All rules of construction are designed to ascertain and give effect to
that intention. It is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law,
as illustrated in the present case, should be construed more liberally than the ones drawn
by an expert, taking into account the circumstances surrounding the execution of the
instrument and the intention of the testator.12 In this regard, the Court is convinced that
the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by him in accordance with law
in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot
be given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Courts opinion, Segundos last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son, Alfredo.1wphi1
Considering that the questioned document is Segundos holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838
of the Civil Code provides that no will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may be rendered nugatory. 17
In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate of
the decedent take precedence over intestate proceedings for the same purpose. 18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED
IN RE TARLO'S ESTATE

OPINION BY MR. JUSTICE SCHAFFER, April 23, 1934:

Albert Tarlo arose early on the morning of November 27, 1930, fired one shot into the
brain of his wife, who was asleep in the same room, proceeded to the bedroom of his
sleeping daughter and shot her in the same way, and then turned the pistol on his own
head. The wife and daughter died instantly in their sleep. He survived for a few hours.
The daughter left no will. The question before us is whether her estate shall be distributed
to the administrator of her father, or to her maternal grandfather, Louis Koch, who is her
next of kin if the inheritance may not pass through her father. The orphans' court awarded
the property to the administrator of the father. Louis Koch has appealed.
Full and most complete briefs have been submitted to us in which the general policy of
the law and decisions from many jurisdictions have been discussed and analyzed.
2
As we see it, however, the question to be decided lies in a very narrow field, that
embraced by the language of section 23 of the Intestate Act approved June 7, 1917, P.
L. 429, 20 P. S. 136, which reads as follows: "No person who shall be finally adjudged
guilty, either as principal or accessory, of murder of the first or second degree, shall be
entitled to inherit or take any part of the real or personal estate of the person killed, as
surviving spouse, heir, or next of kin to such person under the provisions of this act." With
the section in view, it is quite apparent that the field of inquiry is further limited to the
meaning of but one of its words, "adjudged." Does it connote final conviction in the court
of oyer and terminer? If it does, then of course there can be no blocking of the usual
course of descent as the killer was not tried and convicted. His suicide prevented this.
We are of the opinion that the language used in the section is that of the criminal law and
that the expression "shall be finally adjudged guilty" means the judgment of a court of
competent jurisdiction to pass on the question of guilt in murder, the court of oyer and
terminer; that the word "adjudged" as used in the statute is the equivalent of "convicted
and sentenced." "The word 'adjudged' as used in Rev. St. [of New York], article II, page
68, section 1, declaring that every person who shall wilfully swear falsely shall, on
conviction, be 'adjudged' guilty of perjury, and shall not thereafter be received as a witness
in any cause, is synonymous with 'convicted'; and hence a verdict finding one guilty of
perjury does not disqualify him as a witness until sentence has been pronounced
thereon": Words Phrases, 1st Series, volume 1, page 192, citing Blaufus v. People, 69
N.Y. 107, 111, 25 Am. Rep. 148. See also Searight v. Com., 13 S. R. 301, GIBSON, J.
There must be not only a conviction, but judgment of the court and the judgment in
criminal cases is the sentence. "Finally adjudged" means convicted and sentenced and
the sentence not appealed, or, if appealed, that the judgment of sentence has been
affirmed.
While it is true that the views expressed by those who draft or enact laws are not a safe
guide when the courts are called upon to determine the meaning of the words employed
therein (Cumberland v. Boyd, 113 Pa. 52; Lenhart v. Cambria Co., 29 Pa. Super. 350;
Hood Rubber Co. v. Commissioner of Corporations and Taxation, 268 Mass. 355; Lapina
v. Williams, 232 U.S. 78, 90; Gasoline Products Co. v. Champlin Co., 283 U.S. 494), yet
in order to get at the old law, the mischief and the remedy and properly to understand and
construe a statute embodying the latter, the history of the enactment in question may
always be considered: Miles's Est., 272 Pa. 329, 339; Com. v. Quaker City Cab Co., 287
Pa. 161, 169; Orlosky v. Haskell, 304 Pa. 57, 66. In Miles's Est., it was pointed out that
the United States Supreme Court in Duplex Printing Press Co. v. Deering, 254 U.S. 443,
determined that the report of a committee, having a bill in charge during its passage "may
be regarded [judicially] as an exposition of the legislative intent in a case where otherwise
the meaning of a statute is obscure." In that case, the Supreme Court said (page 474):
"By repeated decisions of this court it has come to be well established that the debates
in congress expressive of the views and motives of individual members are not a safe
guide, and hence may not be resorted to, in ascertaining the meaning and purpose of the
law-making body. . . . . . . But reports of committees of house or senate stand upon a
more solid footing, and may be regarded as an exposition of the legislative intent in a
case where otherwise the meaning of a statute is obscure." To the same effect are
McDowell v. Addams, 45 Pa. 430; Whitaker's Est., 175 Pa. 139; Binns v. U.S., 194 U.S.
486.
1
The report of a commission appointed to codify the law upon a given subject is entitled to
even greater weight than the report of a committee; especially is this so where the
legislature enacts the exact language of the commission's draft. The act which we are
considering was the result of the study and recommendation of an able commission
appointed by the governor of the Commonwealth. Section 23 is in the exact language of
their recommendation. In their report (page 47) they say: "This is a new section framed
to meet the situation presented in Carpenter's Est., 170 Pa. 203. In that case, a son killed
his father, was convicted of murder and was executed therefor. His mother, the widow of
the intestate, was convicted as an accessory after the fact and duly sentenced. The
motive of the crime was to get possession of the estate of the decedent, and the Supreme
Court was constrained to hold that the criminals had not forfeited their rights under the
intestate law. . . . . . . The commissioners are of opinion however that the guilt of the party
charged with the crime should be determined by his conviction in the proper forum." It is
impossible to conclude that the legislature in approving the language of the section as the
commission had drafted it did not do so with the intent that it should have the effect which
the commission designed and pointed out to the law makers. To give it a wider effect by
our saying that in using the words "adjudged guilty" the legislature meant more than the
commission intended and meant "adjudged guilty" by the orphans' court, as appellant
contends, would be to close our eyes to the obvious when everything points the other
way. If the law is to be changed so as to cover the situation before us, it is for the
legislature to make the change, not for us.
The decree is affirmed at appellant's cost.

CONCURRING OPINION BY MR. JUSTICE DREW:

I feel compelled, rather unwillingly, to arrive at the conclusion that the decree of the court
below is right and must be affirmed. I think it impossible, on legal grounds, to reach any
other conclusion. The language of section 23 of the Intestate Act of 1917 is too plain.
When considered in the light of the law as declared by us in Carpenter's Est., 170 Pa.
203, which has been changed only to the extent expressed clearly and unequivocally in
the act, the conclusion is inevitable that except in the case of one "finally adjudged guilty,
either as principal or accessory, of murder of the first or second degree," our statute
regulating descent and distribution is adamant, and we are powerless to change the
course of descent from that expressed therein. As we said in that case, "The intestate law
in the plainest words designates the persons who shall succeed to the estates of
deceased intestates. It is impossible for the courts to designate any different persons to
take such estates without violating the law. We have no possible warrant for doing so."
That case has never been overruled, and is the law of the Commonwealth today, except
in the one respect changed by the act. As we have seen, that change affects only
inheritance by one "finally adjudged guilty . . . . . . of murder," which certainly means after
trial, conviction, and final judgment in a court of oyer and terminer; and, by the same
token, it certainly does not affect the inheritance of one not so adjudged guilty of murder.
We have not the power to set aside the plain mandate of the statute of descent, and we
would do that if, for any reason, we wrote into it a course of descent other than that
provided therein. Without overruling the principle expressed in Carpenter's Estate, which
I have quoted above, and doing violence to the statute of descent, the device of a
constructive trust cannot be employed.
For these reasons I agree with the majority that the decree of the court below should be
affirmed, hoping that the legislature in its wisdom will so change the law that, on facts
such as those which have caused our division, the question of guilt will be submitted to
and determined by a jury.

DISSENTING OPINION BY MR. CHIEF JUSTICE FRAZER:

In Carpenter's Est., 170 Pa. 203, this court held that a son who unlawfully killed his father
was entitled under the intestate laws to participate in the distribution of the father's estate.
The decision was later followed by section 23 of the Intestate Act of 1917, which provides
as follows: "No person who shall be finally adjudged guilty, either as principal or
accessory, of murder in the first or second degree, shall be entitled to inherit or take any
part of the real or personal estate of the person killed, as surviving spouse, heir or next
of kin to such person under the provisions of this act." In my opinion, Carpenter's Estate
is the law today and should be followed except to the extent changed as indicated in the
Act of 1917. While the language of the Act of 1917 is somewhat uncertain the intention of
its framers should be ascertained by "rational interpretation" of its provisions; applying
this rule to the situation before us, it seems to me that under the legislation in question,
in adjudicating estates of murdered persons, the killer should be "finally adjudged guilty
[of the killing], either as principal or accessory," by the tribunal having jurisdiction in such
cases, before his next of kin can be barred from participating in the distribution of the
estate of his victim. As I read the act, its provisions do not require that the killer be
convicted of murder in the court of oyer and terminer, as this would be impossible in many
cases, especially the one now before us, as here the offender died by his own hand within
a few hours following the killing. We should assume the legislature did not intend the Act
of 1917 to be of little or no effect or its provisions to be applicable only in cases where
conviction is had in the court of oyer and terminer; what it undoubtedly intended was that
the circumstances of each particular case should be "adjudged," that is, decided and
determined in a competent tribunal, either civil or criminal as the situation demands. In
this case, in my opinion, the orphans' court, in adjudicating distribution of the deceased's
estate, is the proper tribunal to determine the parties entitled to participate in the
distribution. If the killer had survived and been convicted, and sentenced in the court of
oyer and terminer for murder of the first or second degree or accessory, that conviction
would be conclusive in determining the right of those entitled to participate in the
distribution. Here, the offender's suicide immediately following the killing precludes a trial
in the court of oyer and terminer, and if the legislation is to have any bearing on cases of
this character, its provisions require the right of those claiming to participate in the
distribution of the decedent's estate to be passed upon by a proper tribunal. That he took
the life of his daughter is not disputed. Do the circumstances surrounding the unfortunate
occurrence establish the elements necessary to sustain murder of either first or second
degree or accessory? If they do and the father is, after hearing testimony, adjudged to
have been sane at the time of committing the deed, his next of kin is not entitled to inherit;
if, on the contrary, he was insane and as a result of that condition or because of some
other legal reason not chargeable for his act, the next of kin should participate in the
distribution under the intestate laws. The question of the killer's responsibility should,
under the situation here before us, be determined by the orphans' court and distribution
made in accordance with the finding supported by the testimony after full hearing.
I would remit this case for further hearing and disposition as herein indicated.

DISSENTING OPINION BY MR. JUSTICE KEPHART:

The record shows an unlawful killing and the majority opinion fully sets forth the facts,
which raise but one question: Can a murderer profit from the estate of his victim? The
majority opinion decides that he can. I do not agree with that conclusion.
The question is not new in this or other states; many conflicting decisions have answered
it. One group, to stop such a flagrant injustice as to permit an atrocious criminal to enrich
himself by his crime, adhere to the fundamental principle of equity that no one shall be
permitted to profit by his own fraud, to take advantage of his own wrong, or to enjoy the
fruits of his iniquity, and holds that the enjoyment of property, whether by will, or under
the statutes of descent, or through contracts such as life insurance policies, procured
through crime, must be subjected to the scrutiny of this universally recognized principle
of morality, equity and justice. As a matter of public policy, equity will interpose to prevent
such unconscionable modes of acquiring property. It is unnecessary to detail the many
instances and varying circumstances in which these maxims have been applied; the
reader is referred to authorities and writers hereinafter mentioned for further exposition.
The opposite view of a few states is that the force of this principle has been terminated
and denied further effect by the legislature which created a new and different public policy
in the enactment of statutes determining the descent and distribution of property at death;
but no statute anywhere has ever expressed such a thought. The conclusion in every
instance is but an inference of the particular court reached because the statute under
review has not expressed the opposite conclusion.
An examination of the statutes and decisions of this Commonwealth on kindred questions,
reveals not only no impediment to, but a definite and distinct expression of a policy which
is contrary to the result reached in the majority opinion.
The court below and the majority must rely on Carpenter's Est., 170 Pa. 203, as the
Intestate Act, hereinafter discussed, does not help. In that case a son, motivated by the
desire to acquire his father's property, and conniving with his mother, murdered his father.
The son was convicted of murder and hanged. The mother was convicted as an
accessory before the fact. The collateral kinsmen of the father claimed the son had
forfeited any interest he had in his father's estate, and that they were therefore entitled to
inherit. This court held on two grounds [Justice WILLIAMS dissenting], that the son had
not forfeited his right to inherit, regardless of the means by which he inherited, because:
1st. Under article I, section 18 and section 19, of the declaration of rights, it is provided
that "no person shall be attainted by treason or felony by the legislature" and that "no
attainder shall work corruption of blood, nor, except during the life of the offender,
forfeiture of estate to the Commonwealth." It is apparent that the court erred in using this
reason as a basis for its opinion, since there can be no forfeiture of an estate of which
one has not yet come into possession, nor was there in that case, nor is there in this, any
question of "forfeiture of estate to the Commonwealth." Moreover, such provisions,
indubitably apply to the estate in the possession of the one guilty of the treason or felony
at the time he commits the act, and do not govern the question of the transmission to or
through him of other interests or estates thereafter: Price v. Hitaffer, 165 A. 470 [Md.
1933].
The second reason given was that "the Intestate Law in the plainest words designates
the persons who shall succeed to the estates of deceased intestates. It is impossible for
the courts to designate any different persons to take such estates without violating the
law." Justice GREEN, in meeting the argument that it was against public policy to permit
a murderer to profit by his crime, stated that there could be no public policy directly in
opposition to a positive statute on the subject. There was, however, no "positive statute
on the subject," but only an inference by the court. Upon such legalistic reasoning as that
stated, without regard to the fundamental principles and concepts of equity which this
court had prior thereto often announced and applied to prevent the consummation of
fraud, duress, undue influence, and other analogous situations, the decision was reached.
It was necessarily followed by the Superior Court, of course, without discussion, in
Johnson's Est., 29 Pa. Super. 255. It may be remarked that Justice GREEN relied on
Owens v. Owens, 100 N.C. 242, where homicide did not prevent the wrongdoer from
participating in his victim's estate. Thereafter the cases of Bryant v. Bryant, 193 N.C. 372,
and Parker v. Potter, 200 N.C. 348, were decided, overruled Owens v. Owens, supra,
and held the word "convicted" in a statute did not mean a trial in the criminal court.
The natural result of the unjust and inequitable decision in Carpenter's Est., supra, was
section 23 of the Intestate Act of June 7, 1917, P. L. 429, which provided: "No person
who shall be finally adjudged guilty, either as principal or accessory, of murder of the first
or second degree, shall be entitled to inherit or take any part of the real or personal estate
of the person killed, as surviving spouse, heir, or next of kin to such person under the
provisions of this act." The title to the estate would not pass to the murderer as an heir,
spouse or next of kin. The act dealt with descent only.
The legislature, however, enacted this section with Carpenter's Est., supra, in mind. It
was advisedly overruling the reasoning of that decision; it wiped out and completely
destroyed its effect and declared as the policy of the Commonwealth the principle that
those found guilty of murder shall not profit by their wrong and inherit from their victims.
This policy is the reverse of that stated in the court's opinion in Carpenter's Est., supra.
We need not discuss the intention of the legislature in using the word, "adjudged," and
we may accept for our present purpose the conclusion of the lower court and the majority
as to that intention, but such determination wholly neglects the substance of the problem
before us. While it was of course the function of the legislature to declare the public policy
as it related to inheritance resulting from murder, the mere fact that the legislature set
aside the public policy announced in Carpenter's Estate and declared a new policy as to
inheritance by those "adjudged guilty" of murder, does not prevent us in those cases
which may fall outside the statute from considering, under the principles of equity and
common law, the legal effect of murder on the transmission of title to the property of the
deceased. The legislature did not declare that murderers who were not "adjudged guilty"
should profit by the crime.
The function of courts is to execute the policy enunciated by the legislature within the
specific spheres covered by the act, but such legislative expressions, unless intended to
do so, do not preclude this court from considering the entire subject-matter not covered
by the act, and we may review anew under equitable and common law principles the
question involved, unfettered by precedent or statute.
In considering the various situations involving the procurement and enjoyment of property
as the result of murder, the court must envisage not merely the commands of the common
and statutory law, but must hearken to the dictates of conscience where fraud, force or
crime appear, and, depending on the strong arm of equity acting in personam, compel
the perpetrator of the crime to surrender that to which at law, whether statutory or
unwritten, he has acquired title. The legislature has expressed the public policy in section
23 of the Intestate Act, supra, and as it relates to wills in the Act of June 7, 1917, P. L.
403, section 22. It has there pointed the way for our action in the cases not coming within
the statutory terms.
It is not the province of equity to administer the criminal law but to secure restitution to a
person wronged, by compelling the wrongdoer to give up the fruits of his misconduct to
the extent to which he was benefited by such misconduct or to the closest approximation
to complete justice. On principle, it is apparent that a court of conscience must, if possible,
intervene to prevent a murderer from enjoying the property of his victim, a result so
sordid and so abhorrent to all principles of fairness and right. This may be done by the
application of the well established and frequently employed equitable doctrine or principle
that no person shall be permitted to profit or be unjustly enriched as the result of unlawful
acts committed by him. All laws as well as contracts may be controlled in their operation
and effect by the general fundamental concepts of equity and the common law. As stated
by FRY, L. J., in Cleaver v. Mutual Reserve, etc., Assn. (1892), 1 Q. B. 147, 156: "It
appears to me that no system of jurisprudence can with reason include, amongst the
rights which it enforces, rights directly resulting to the person asserting them from the
crime of that person. If no action can arise from fraud, it seems impossible to suppose
that it can arise from felony or misdemeanor." It is uniformly stated that no one shall be
permitted to profit by his own fraud, to take advantage of his own wrong, to found any
claim upon his own iniquity, or to acquire property by his own crime. These are not new,
novel, or untried principles, but are constantly applied by this court under its great equity
powers. No interference with the operation of the law of intestacy, descent and wills is
involved. The title under the law passes to the wrongdoer, but, to prevent him from being
unjustly enriched as a result of his crime, chancery compels him to hold the property he
has thus received as constructive trustee for the benefit, use and enjoyment of those
whom by his act he has attempted to cheat, and there being no legal or equitable reason
for continuing such a trust, may decree it ended and give the estate to those beneficially
interested.
While the authorities on this subject reveal a considerable division, the weight of opinion
is decidedly against permitting the wrongdoer to reap the harvest of his evil, and to cheat
justice by suicide: New York Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591; Price v.
Hitaffer, supra; Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565; Perry v. Strawbridge,
209 Mo. 621; Riggs v. Palmer, 115 N.Y. 506; Ellerson v. Westcott, 148 N.Y. 149; Parker
v. Potter, supra; Bryant v. Bryant, supra; Box v. Lanier, 112 Tenn. 393; In re Tyler, 140
Wn. 679; In re Wilkins, 192 Wis. 111; Cleaver v. Mutual Reserve, etc., Assn., supra;
Crippen's Est., 1911 Probate R. 108; Hall's Est., 1914 Probate R. 1; Lundy v. Lundy, 24
Can. Sup. Ct. 650. See Ames Lectures on Legal History 310; 30 Harvard L. R. 622; 29
Michigan L. R. 745 (1931); 64 Univ. of Pa. L. R. 307; 30 Law Quarterly Review 320 (1931);
6 Cincinnati L. R. 469 (1932); Virginia L. R., March, 1933, page 518; Cardozo, "The
Nature of Judicial Process," page 40.
To discuss in detail these numerous authorities would only reinforce what I have already
said. They reveal the growing conviction not only of courts but also of legal scholars that
the logic and power of the principle that no man shall profit from his own iniquity or take
advantage of his own wrong, is sufficient to compel the wrongdoer who takes legal title
under the statutes of descent and distribution, to hold that bare, naked, legal title as
trustee for the heirs or personal representatives of his victim.
For the reasons above given, I dissent from the opinion and judgment of the majority, and
would reverse the decree of the orphans' court.
Mr. Justice SIMPSON concurred in this dissent.
IN RE ESTATE OF NAKONECZNY
Michael Nakoneczny died testate on January 26, 1970, leaving a Will dated November
5, 1956, an insurance
[456 Pa. 322]

agreement executed the same day and two codicils dated May 4, 1966 and March 27,
1967 respectively. The Will and codicils were admitted to probate and an inventory and
appraisement were filed showing a gross estate of $545,483.21. This is an appeal from
the denial of exceptions filed to the Opinion, Order and Decree of Distribution by
appellants, Paul Nakoneczny, son of testator, and his wife, Stella. The exceptions were
dismissed and the Decree of the auditing judge was affirmed by the Court en banc on
April 25, 1972.
Ademption of the Specific Devise of the Premises 3039 Preble Avenue
In paragraph four of his will testator provided: "FOURTH: I give, devise and bequeath
that certain parcel of real estate situate at 3039 Preble Avenue, Pittsburgh,
Pennsylvania, which is presently operated as a tavern, together with all fixtures forming
a part of the said realty and all equipment necessary to the operation of the said tavern,
to my son, PAUL NAKONECZNY, if he survives me. It is my desire that my Executor
secure, if at all possible, the transfer of the liquor license to my son, PAUL
NAKONECZNY, if he is then living."
In November of 1956, testator owned the building situated at 3039 Preble Avenue,
Pittsburgh. A portion of these premises was used in the operation of a restaurant and
barroom by testator and the remainder served as a dwelling for him and his family.
Decedent operated this business until January 1960 when he gave the business,
equipment, supplies and liquor license to his son, the appellant, Paul Nakoneczny. In
May of 1968, the property was acquired by the Urban Redevelopment Authority and the
bulk of the proceeds were used by decedent to purchase certain bonds which he
retained and remained in his possession until his death. The
[456 Pa. 323]

auditing judge found that there had been an ademption and denied appellants' claim to
the bonds that had been purchased with the proceeds derived from the sale of the Preble
Avenue property. We agree.
It has long since been decided in this jurisdiction that a specific legacy or devise is
extinguished if the property is not in existence or does not belong to the testator at the
time of his death. Soles Estate, 451 Pa. 568, 304 A.2d 97 (1973); McFerren Estate, 365
Pa. 490, 76 A.2d 759 (1950); Horn's Estate, 317 Pa. 49, 175 A. 414 (1934); Harshaw v.
Harshaw, 184 Pa. 401, 39 A. 89 (1898); Hoke v. Herman, 21 Pa. 301 (1853);
Blackstone v. Blackstone, 3 Watts 335 (1834). Testator's intent is not relevant where the
property devised or bequeathed in his will is not part of his estate at death. Where the
legacy has been determined to be specific "[t]he legatee is entitled to the very thing
bequeathed if it be possible for the executor to give it to him; but if not, he cannot have
money in place of it. This results from an inflexible rule of law applied to the mere fact
that the thing bequeathed does not exist, and it is not founded on any presumed
intention of the testator." Horn's Estate, supra at 53; Hoke v. Herman, supra at 305. See
also, Harshaw v. Harshaw, supra; Pruner's Estate, 222 Pa. 179, 70 A. 1000 (1908). This
rule is equally applicable where the specifically devised or bequeathed property is
removed from testator during his lifetime by an involuntary act or by operation of law.1
Harshaw v. Harshaw, supra; Pleasants'
[456 Pa. 324]

Appeal, 77 Pa. 356 (1875). Thus, where it is established that the bequest or devise was
specific and the nonexistence of the item in the testator's estate at the time of death, an
ademption results.
The only issue crucial to the resolution of the problems presented is whether the devise
of the realty in this case was specific. A specific devise is a gift by will of a specific
parcel which is identified and distinguished from all other parcels of land, and which
may be satisfied only by delivery of the particular parcel of property. Soles Estate, supra
at 573; Snyder's Estate, 217 Pa. 71, 66 A. 157 (1907). Appellant first argues that this
was a demonstrative devise and thus not subject to ademption. He argues that
paragraphs seven2 and eight3 evidence a clear intention on the part of decedent to
assure Paul's right to the proceeds in the event the Preble Avenue property was sold.
Although, as has been stated, intention is not relevant on the question of ademption, it
is relevant when the issue to be determined is whether the legacy is demonstrative or
specific. Shearer's Estate, 346 Pa. 97, 29 A.2d 535 (1943); Walls v. Stewart, 16 Pa.
275, 281-282 (1851). Further, that intention must be gathered not only from the
language used in creating the bequest or devise but from the provisions of the will as a
whole, and if there is doubt, courts are inclined to find a demonstrative rather than a
specific legacy, devise or bequest.
[456 Pa. 325]
Shearer's Estate, supra at 101. See also Crawford's Estate, 293 Pa. 570, 574, 143 A.
214 (1928). Here, however, the language of paragraph four leaves no question of the
intent to create a specific devise. Nor do we find any merit in the suggestion that
paragraphs 7 and 8 in anyway alters this conclusion. Clearly paragraphs 7 and 8 were
merely limiting the power of the Executor to prevent the sale of the property that was
designated in paragraph 4 as the subject of the specific devise provided that the
property was an asset of the estate at the time of death. In our judgment, these
paragraphs strengthen rather than weaken the view that testator intended a specific
devise.
Appellant's reliance upon Shearer's Estate, supra, is misplaced. In Shearer's Estate, the
testator created by will a trust for the benefit of his son, for and during the lifetime of the
son. After describing his farm along with the stock and personal property thereon as the
corpus of the trust, testator provided: "[t]he value of the said farm and contents I fix at
the sum of Six Thousand Dollars, so that my said son shall receive the use and benefit
of said amount out of my estate." From other provisions in the document it was clear
that testator was attempting to equalize the distributions among his children. This Court
there properly held: ". . ., it is quite obvious that the intention of testator was that his son
Clayton should, in all events, receive the benefit of an amount of $6,000, his paramount
desire being to equalize the shares of his children after taking into consideration the
amounts that some of them had received in his lifetime. As Jacob had already obtained
$6,000, and each daughter $2,000, he gave to each daughter $4,000 more and to
Clayton the farm and its contents, the value of which he expressly fixed at the sum of
$6,000 `so that my said son shall receive the use and benefit of said amount out of my
estate.'" 346 Pa. at 101.
[456 Pa. 326]

As evident as testator's "demonstrative" intent was in Shearer, the intent of this testator
to make a specific devise is equally as apparent. The fourth paragraph fails to express
any intention to carry with it the proceeds from a possible sale of the subject real estate.
Appellant's reliance upon Frost Estate, 354 Pa. 223, 47 A.2d 219 (1946) is also of no
avail. In Frost Estate, supra, where testatrix provided a gift to her brother and sisters of
the proceeds of her General Motors stock and prior to death sold the stock, however the
funds were traceable, we held that the gift was not adeemed. Our decision in Frost was
a recognition of a distinction between a gift of stock and a gift of its proceeds.
Consistent with the decisions in a number of other jurisdictions4 we held in the latter
instance where the money can be traced the gift is not adeemed and the legatee is
entitled to the proceeds. Here, however, there was not a gift of the proceeds from the
sale of the realty but rather a gift of the realty itself.
Finally, appellant argues that Section 14 of the Wills Act of 1947 is applicable.5 This
section provides: "(17) Ademption. A specific devise or bequest shall not be adeemed
when the testator or the testator's estate receives an asset in exchange for the subject
of the devise or bequest and the act which otherwise would have caused the ademption
occurs while the testator is an adjudged incompetent. In such case the devise or
bequest shall be deemed to apply to whatever was received in exchange. Added 1965,
Dec. 22, P.L. 1194, 1." Appellant attempted to demonstrate that the decedent became
incompetent shortly after the sale of the subject
[456 Pa. 327]

real estate and was therefore unable to make a new Will. To the contrary, there was
substantial testimony in the record that indicates decedent continued to conduct his
personal affairs competently for many months after the June 1968 sale. In any event there
was never an adjudication of incompetency and thus this statutory provision is
inapplicable. We therefore affirm the Court en banc's ruling that the devise set forth in
paragraph four of the will was adeemed.
The Alleged Contract Between Decedent and Appellant Paul Nakoneczny
In the alternative Paul claims the proceeds from the sale of the Preble Street property
under the theory of breach of contract. He contends that the record demonstrated that a
contract existed between him and his father, whereby the father had agreed to devise
the property to him by will and that the ademption of the property resulted in a breach of
said contract. We recently observed in Vajentic Estate, 453 Pa. 1, 306 A.2d 300 (1973):
"We note first that, while contracts to make a will in a certain manner, are recognized in
Pennsylvania, such contracts are viewed `with misgivings and suspicion'. Fahringer v.
Strine Estate, supra. As we said in Fahringer, at page 52: `A contract to make a will in a
certain manner or to bequeath by will a specific monetary sum is recognized in
Pennsylvania as valid, provided the creation of such contract and its terms are proven
with clarity and conviction and valid consideration shown [cites omitted]. However,
because resort to such contracts represents an effort to effect a distribution, either in
whole or in part, of the estate of a decedent in a manner different than the orderly
procedure of a will the stringent requirements of which have been set forth by the
legislature and because of the opportunity such alleged contracts afford for the
presentation of false and fraudulent claims, traditionally
[456 Pa. 328]

the courts have been reluctant to give recognition to such contracts and have viewed
claims based on such contracts with misgivings and suspicions.'" 453 at 7, 306 A.2d at
304. To establish the existence of the contract Paul and his wife offered testimony to that
effect. In addition, testimony was offered in support of the existence of the contract by
Rosemarie Michelson, the mother-in-law of Paul and Rosemary, Paul's daughter. The
court below found the testimony of Paul and his wife Stella was barred by the Act of May
23, 1887, P.L. 158, par. 5, 28 P.S. 322. The court also determined that the testimony of
Rosemarie and Rosemary standing alone failed to provide the degree of proof necessary
to establish the existence of a contract. A review of the record satisfies us that the
testimony of the daughter and the mother-in-law was indeed inadequate. The crucial
issue, therefore, is whether the court was correct in determining that the testimony of Paul
and his wife was excluded by the Dead Man's Act. That statute provides in pertinent part:
"Nor, where any party to a thing or contract in action is dead . . . and his right thereto or
therein has passed, either by his own act or by the act of the law, to a party on the record
who represents his interest in the subject in controversy, shall any surviving or remaining
party to such thing or contract, or any other person whose interest shall be adverse to the
said right of such deceased . . . party, be a competent witness to any matter occurring
before the death of said party. . . ." Proceeding under the theory of breach of contract
Paul stands in the position of any other creditor attempting to proceed against the assets
of the estate and, therefore, the statute is clearly applicable and bars his testimony.
Consequently, Stella, the wife of Paul is also barred. See, Clay Estate, 438 Pa. 183
(1970); Roak's Estate, 22 Dist. 540 (1913); Moore Estate, 439 Pa. 578, 582 n[**], 266
A.2d 641 (1970).
[456 Pa. 329]

The Claim of Stella Nakoneczny

Appellant, Stella Nakoneczny submitted a claim for housekeeping services,
bookkeeping and clerical work. Mrs. Michelson, Ann Ladiska, Rosemary Nakoneczny
and Mrs. Mary Kennedy testified in support thereof. These witnesses offered evidence
to establish, beginning in 1948 and apparently continuing until the Spring of 1968 when
decedent moved into his own apartment, Stella Nakoneczny washed, ironed, cleaned
and cooked for the decedent along with herself and her husband who were all residing
at the same premises. It was also testified that she kept the books and performed other
clerical services for the decedent. The auditing judge found:
"We find that Stella's claim is not supported by the record. She and her husband lived
with the husband's father in his household. Any claim for household chores would be
offset by the lodging the decedent afforded to her.
"The claim for bookkeeping and clerical services was not proved by evidence of the
character required to support a claim against a decedent's estate. There is no evidence
as to the period of time covered by the alleged services other than that they
commenced in 1948, and presumably ended when decedent moved into his own
apartment on Superior Avenue. There is no evidence whatsoever as to how much time
per day or per week Stella devoted to the task, nor is there clear evidence as to the
nature of the work. There are only `loose declarations' to the effect that Stella `kept
decedent's books' and `wrote his checks'. The declarations of decedent to the effect that
Stella's money was `working for her' are totally inadequate to support a finding that
decedent had made an agreement with Stella to compensate her for her work. For the
foregoing reasons, the claim is disallowed."
[456 Pa. 330]

After careful review of the record we agree that appellant, Stella Nakoneczny, failed to
establish her claim for services against the estate.
Decree affirmed. Costs to be borne by the appellants.