G.R. No. L-12767             November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON, applicant-appellant,

Hartigan & Welch for applicant and appellant.Hartford Beaumont for Victor Johnson and others as appellees.Chas. E. Tenney for Alejandra Ibañez de Johnson, personally and as guardian, and for Simeona Ibañez, appellees.

 

STREET, J.:

On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized citizen of the United States, died in the city of Manila, leaving a will, dated September 9, 1915, by which he disposed of an estate, the value of which, as estimated by him, was P231,800. This document is an holographic instrument, being written in the testator's own handwriting, and is signed by himself and two witnesses only, instead of three witnesses required by section 618 of the Code of Civil Procedure. This will, therefore, was not executed in conformity with the provisions of law generally applicable to wills executed by inhabitants of these Islands, and hence could not have been proved under section 618.

On February 9, 1916, however, a petition was presented in the Court of First Instance of the city of Manila for the probate of this will, on the ground that Johnson was at the time of his death a citizen of the State of Illinois, United States of America; that the will was duly executed in accordance with the laws of that State; and hence could properly be probated here pursuant to section 636 of the Code of Civil Procedure. This section reads as follows:

Will made here by alien. — A will made within the Philippine Islands by a citizen or subject of another state or country, which is executed in accordance with the law of the state or country of which he is a citizen or subject, and which might be proved and allowed by the law of his own state or country, may be proved, allowed, and recorded in the Philippine Islands, and shall have the same effect as if executed according to the laws of these Islands.

The hearing on said application was set for March 6, 1916, and three weeks publication of notice was ordered in the "Manila Daily Bulletin." Due publication was made pursuant to this order of the court. On March 6, 1916, witnesses were examined relative to the execution of the will; and upon March 16th thereafter the document was declared to be legal and was admitted to probate. At the same time an order was made nominating Victor Johnson and John T. Pickett as administrators of the estate, with the sill annexed. Shortly thereafter Pickett signified his desire not to serve, and Victor Johnson was appointed sole administrator.

By the will in question the testator gives to his brother Victor one hundred shares of the corporate stock in the Johnson-Pickett Rope Company; to his father and mother in Sweden, the sum of P20,000; to his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra Ibañez, the sum of P75 per month, if she remains single; to Simeona Ibañez, spinster, P65 per month, if she remains single. The rest of the property is left to the testator's five children — Mercedes, Encarnacion, Victor, Eleonor and Alberto.

The biographical facts relative to the deceased necessary to an understanding of the case are these: Emil H. Johnson was born in Sweden, May 25, 1877, from which country he emigrated to the United States and lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago, he was married to Rosalie Ackeson, and immediately thereafter embarked for the Philippine Islands as a soldier in the Army of the United States. As a result of relations between Johnson and Rosalie Ackeson a daughter, named Ebba Ingeborg, was born a few months after their marriage. This child was christened in Chicago by a pastor of the Swedish Lutheran Church upon October 16, 1898.

After Johnson was discharged as a soldier from the service of the United States he continued to live in the Philippine Islands, and on November 20, 1902, the wife, Rosalie Johnson, was granted a decree of divorce from him in the Circuit Court of Cook County, Illinois, on the ground of desertion. A little later Johnson appeared in the United States on a visit and on January 10, 1903, procured a certificate of naturalization at Chicago. From Chicago he appears to have gone to Sweden, where a photograph, exhibited in evidence in this case, was taken in which he appeared in a group with his father, mother, and the little daughter, Ebba Ingeborg, who was then living with her grandparents in Sweden. When this visit was concluded, the deceased returned to Manila, where he prospered in business and continued to live until his death.

In this city he appears to have entered into marital relations with Alejandra Ibañez, by whom he had three children, to wit, Mercedes, baptized May 31, 1903; Encarnacion, baptized April 29, 1906; and Victor, baptized December 9, 1907. The other two children mentioned in the will were borne to the deceased by Simeona Ibañez.

On June 12, 1916, or about three months after the will had been probated, the attorneys for Ebba Ingeborg Johnson entered an appearance in her behalf and noted an exception to the other admitting the will to probate. On October 31, 1916, the same attorneys moved the court to vacate the order of March 16 and also various other orders in the case. On February 20, 1917, this motion was denied, and from this action of the trial court the present appeal has been perfected.

As will be discerned, the purpose of the proceeding on behalf of the petitioner is to annul the decree of probate and put the estate into intestate administration, thus preparing the way for the establishment of the claim of the petitioner as the sole legitimate heir of her father.

The grounds upon which the petitioner seeks to avoid the probate are four in number and may be stated, in the same sequence in which they are set forth in the petition, as follows:

(1) Emil H. Johnson was a resident of the city of Manila and not a resident of the State of Illinois at the time the will in question was executed;

(2) The will is invalid and inadequate to pass real and personal property in the State of Illinois;

(3) The order admitting the will to probate was made without notice to the petitioner; and

(4) The order in question was beyond the jurisdiction of the court.

It cannot of course be maintained that a court of first instance lacks essential jurisdiction over the probate of wills. The fourth proposition above stated must, accordingly, be interpreted in relation with the third and must be considered as a corollary deduced from the latter. Moreover, both the third and fourth grounds stated take precedence, by reason of their more fundamental implications, over the first two; and a logical exposition of the contentions of the petitioner is expressed in the two following propositions:

(I) The order admitting the will to probate was beyond the jurisdiction of the court and void because made without notice to the petitioner;

(II) The judgment from which the petitioner seeks relief should be set aside because the testator was not a resident of the State of Illinois and the will was not in conformity with the laws of that State.

In the discussion which is to follow we shall consider the problems arising in this cae in the order last above indicated. Upon the question, then, of the jurisdiction of the court, it is apparent from an inspection of the record of the proceedings in the court below that all the steps prescribed by law as prerequisites to the probate of a will were complied with in every respect and that the probate was effected in external conformity with all legal requirements. This much is unquestioned. It is, however, pointed out in the argument submitted in behalf of the petitioner, that, at the time the court made the order of publication, it was apprised of the fact that the petitioner lived in the United States and that as daughter and heir she was necessarily interested in the probate of the will. It is, therefore, insisted that the court should have appointed a date for the probate of the will sufficiently far in the future to permit the petitioner to be present either in person or by representation; and it is said that the failure of the court thus to postpone the probate of the will constitutes an infringement of that provision of the Philippine Bill which declared that property shall not be taken without due process of law.

On this point we are of the opinion that the proceedings for the probate of the will were regular and that the publication was sufficient to give the court jurisdiction to entertain the proceeding and to allow the will to be probated.

As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding as to the probate of a will is essentially one in rem, and in the very nature of things the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding where it has absolute possession of the res. It would be an exceptional case where a court would declare a statute void, as depriving a party of his property without due process of law, the proceeding being strictly in rem, and the res within the state, upon the ground that the constructive notice prescribed by the statute was unreasonably short."

In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the testator's death; and it was impossible, in view of the distance and means of communication then existing, for the petitioner to appear and oppose the probate on the day set for the hearing in California. It was nevertheless held that publication in the manner prescribed by statute constituted due process of law. (See Estate of Davis, 151 Cal., 318; Tracy vs.Muir, 151 Cal., 363.)

In the Davis case (136 Cal., 590) the court commented upon the fact that, under the laws of California, the petitioner had a full year within which she might have instituted a proceeding to contest the will; and this was stated as one of the reasons for holding that publication in the manner provided by statute was sufficient. The same circumstance was commented upon in O'Callaghan vs. O'Brien (199 U. S., 89), decided in the Supreme Court of the United States. This case arose under the laws of the State of Washington, and it was alleged that a will had been there probated without the notice of application for probate having been given as required by law. It was insisted that this was an infringement of the Fourteenth Amendment of the Constitution of the United States. This contention was, however, rejected and it was held that the statutory right to contest the will within a year was a complete refutation of the argument founded on the idea of a violation of the due process provision.

The laws of these Islands, in contrast with the laws in force in perhaps all of the States of the American Union, contain no special provision, other than that allowing an appeal in the probate proceedings, under which relief of any sort can be obtained from an order of a court of first instance improperly allowing or disallowing a will. We do, however, have a provision of a general nature authorizing a court under certain circumstances to set aside any judgment, order, or other proceeding whatever. This provision is found in section 113 of the Code of Civil Procedure, which reads as follows:

Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.

The use of the word "judgment, order or other proceeding" in this section indicates an intention on the part of the Legislature to give a wide latitude to the remedy here provided, and in our opinion its operation is not to be restricted to judgments or orders entered in ordinary contentious litigation where a plaintiff impleads a defendant and brings him into court by personal service of process. In other words

the utility of the provision is not limited to actions proper but extends to all sorts of judicial proceedings.

In the second section of the Code of Civil Procedure it is declared that the provisions of this Code shall be liberally construed to promote its object and to assist the parties in obtaining speedy justice. We think that the intention thus exhibited should be applied in the interpretation of section 113; and we hold that the word "party," used in this section, means any person having an interest in the subject matter of the proceeding who is in a position to be concluded by the judgment, order, to other proceeding taken.

The petitioner, therefore, in this case could have applied, under the section cited, at any time within six months for March 16, 1916, and upon showing that she had been precluded from appearing in the probate proceedings by conditions over which she had no control and that the order admitting the will to probate had been erroneously entered upon insufficient proof or upon a supposed state of facts contrary to the truth, the court would have been authorized to set the probate aside and grant a rehearing. It is no doubt true that six months was, under the circumstances, a very short period of time within which to expect the petitioner to appear and be prepared to contest the probate with the proof which she might have desired to collect from remote countries. Nevertheless, although the time allowed for the making of such application was inconveniently short, the remedy existed; and the possibility of its use is proved in this case by the circumstance that on June 12, 1916, she in fact here appeared in court by her attorneys and excepted to the order admitting the will to probate.

It results that, in conformity with the doctrine announced in the Davis case, above cited, the proceedings in the court below were conducted in such manner as to constitute due process of law. The law supplied a remedy by which the petitioner might have gotten a hearing and have obtained relief from the order by which she is supposed to have been injured; and though the period within which the application should have been made was short, the remedy was both possible and practicable.

From what has been said it follows that the order of March 16, 1916, admitting the will of Emil H. Johnson to probate cannot be declared null and void merely because the petitioner was unavoidably prevented from appearing at the original hearing upon the matter of the probate of the will in question. Whether the result would have been the same if our system of procedure had contained no such provision as that expressed in section 113 is a matter which we need not here consider.

Intimately connected with the question of the jurisdiction of the court, is another matter which may be properly discussed at this juncture. This relates to the interpretation to be placed upon section 636 of the Code of Civil Procedure. The position is taken by the appellant that this section is applicable only to wills of liens; and in this connection attention is directed to the fact that the epigraph of this section speaks only of the will made here by an alien and to the further fact that the word "state" in the body of the section is not capitalized. From this it is argued that section 636 is not applicable to the will of a citizen of the United States residing in these Islands.lawphil.net

We consider these suggestions of little weight and are of the opinion that, by the most reasonable interpretation of the language used in the statute, the words "another state or country" include the United States and the States of the American Union, and that the operation of the statute is not limited to wills of aliens. It is a rule of hermeneutics that punctuation and capitalization are aids of low degree in interpreting the language of a statute and can never control against the intelligible meaning of the written words. Furthermore, the epigraph, or heading,, of a section, being nothing more than a convenient index to the contents of the provision, cannot have the effect of limiting the operative words contained in the body of the text. It results that if Emil H. Johnson was at the time of his death a citizen of the United States and of the State of Illinois, his will was provable under this section in the courts of the Philippine Islands, provided the instrument was so executed as to be admissible to probate under the laws of the State of Illinois.

We are thus brought to consider the second principal proposition stated at the outset of this discussion, which raises the question whether the order f probate can be set aside in this proceeding on the other ground stated in the petition, namely, that the testator was not a resident of the State of Illinois and that the will was not made in conformity with the laws of that State.

The order of the Court of First Instance admitting the will to probate recites, among other things:

That upon the date when the will in question was executed Emil H. Johnson was a citizen of the United States, naturalized in the State of Illinois, County of Cook, and that the will in question was executed in conformity with the dispositions of the law f the State of Illinois.

We consider this equivalent to a finding that upon the date of the execution of the will the testator was a citizen of the State of Illinois and that the will was executed in conformity with the laws of that State. Upon the last point the finding is express; and in our opinion the statement that the testator was a citizen of the United States, naturalized in the State of Illinois, should be taken to imply that he was a citizen of the State of Illinois, as well as of the United States.

The naturalization laws of the United States require, as a condition precedent to the granting of the certificate of naturalization, that the applicant should have resided at least five years in the United States and for one year within the State or territory where the court granting the naturalization papers is held; and in the absence of clear proof to the contrary it should be presumed that a person naturalized in a court of a certain State thereby becomes a citizen of that State as well as of the United States.

In this connection it should be remembered that the Fourteenth Amendment to the Constitution of the United States declares, in its opening words, that all persons naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

It is noteworthy that the petition by which it is sought to annul the probate of this will does not assert that the testator was not a citizen of Illinois at the date when the will was executed. The most that is said on this point is he was "never a resident of the State of Illinois after the year 1898, but became and was a resident of the city of Manila," etc. But residence in the Philippine Islands is compatible with citizenship in Illinois; and it must be considered that the allegations of the petition on this point are, considered in their bearing as an attempt to refute citizenship in Illinois, wholly insufficient.

As the Court of First Instance found that the testator was a citizen of the State of Illinois and that the will was executed in conformity with the laws of that State, the will was necessarily and properly admitted to probate. And how is it possible to evade the effect of these findings?

In Section 625 of the Code of Civil Procedure it is declared that "the allowance by the court of a will of real or personal property shall be conclusive as to its due execution."

The due execution of a will involves conditions relating to a number of matters, such as the age and mental capacity of the testator, the signing of the document by the testator, or by someone in his behalf, and the acknowledgment of the instrument by him in the presence of the required number of witnesses who affix their signatures to the will to attest the act. The proof of all these requisites is involved in the probate; and as to each and all of them the probate is conclusive. (Castañeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montañano vs.Suesa, 14 Phil. Rep., 676.)

Our reported cases do not contain the slightest intimation that a will which has been probated according to law, and without fraud, can be annulled, in any other proceeding whatever, on account of any supposed irregularity or defect in the execution of the will or on account of any error in the action of the court upon the proof adduced before it. This court has never been called upon to decide whether, in case the probate of a will should be procured by fraud, relief could be granted in some other proceeding; and no such question is now presented. But it is readily seen that if fraud were alleged, this would introduce an entirely different factor in the cae. In Austruavs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not decided that relief might be granted in case the probate of a will were procured by fraud.

The circumstance that the judgment of the trial court recites that the will was executed in conformity with the law of Illinois and also, in effect, that the testator was a citizen of that State places the judgment upon an unassailable basis so far as any supposed error apparent upon the fact of the judgment is concerned. It is, however, probable that even if the judgment had not contained these recitals, there would have been a presumption from the admission of the will to probate as the will of a citizen of Illinois that the facts were as recited in the order of probate.

As was said by this court in the case of Banco Español-Filipino vs. Palanca (37 Phil. Rep., 921), "There is no principle of law better settled than that after jurisdiction has

once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge."

The Court of First Instance is a court of original and general jurisdiction; and there is no difference in its faculties in this respect whether exercised in matters of probate or exerted in ordinary contentious litigation. The trial court therefore necessarily had the power to determine the facts upon which the propriety of admitting the will to probate depended; and the recital of those facts in the judgment was probably not essential to its validity. No express ruling is, however, necessary on this point.

What has been said effectually disposes of the petition considered in its aspect as an attack upon the order of probate for error apparent on the face of the record. But the petitioner seeks to have the judgment reviewed, it being asserted that the findings of the trial court — especially on the question of the citizenship of the testator — are not supported by the evidence. It needs but a moment's reflection, however, to show that in such a proceeding as this it is not possible to reverse the original order on the ground that the findings of the trial court are unsupported by the proof adduced before that court. The only proceeding in which a review of the evidence can be secured is by appeal, and the case is not before us upon appeal from the original order admitting the will to probate. The present proceedings by petition to set aside the order of probate, and the appeal herein is from the order denying this relief. It is obvious that on appeal from an order refusing to vacate a judgment it is not possible to review the evidence upon which the original judgment was based. To permit this would operate unduly to protract the right of appeal.

However, for the purpose of arriving at a just conception of the case from the point of view of the petitioner, we propose to examine the evidence submitted upon the original hearing, in connection with the allegations of the petition, in order to see, first, whether the evidence submitted to the trial court was sufficient to justify its findings, and, secondly, whether the petition contains any matter which would justify the court in setting the judgment, aside. In this connection we shall for a moment ignore the circumstance that the petition was filed after the expiration of the six months allowed by section 113 of the Code of Civil Procedure.

The principal controversy is over the citizenship of the testator. The evidence adduced upon this point in the trial court consists of the certificate of naturalization granted upon January 10, 1903, in the Circuit Court of Cook County, Illinois, in connection with certain biographical facts contained in the oral evidence. The certificate of naturalization supplies incontrovertible proof that upon the date stated the testator became a citizen of the United States, and inferentially also a citizen of said State. In the testimony submitted to the trial court it appears that, when Johnson first came to the United States as a boy, he took up his abode in the State of Illinois and there remained until he came as a soldier in the United States Army to the Philippine Islands. Although he remained in these Islands for sometime after receiving his discharge, no evidence was adduced showing that at the time he

returned to the United States, in the autumn of 1902, he had then abandoned Illinois as the State of his permanent domicile, and on the contrary the certificate of naturalization itself recites that at that time he claimed to be a resident of Illinois.

Now, if upon January 10, 1903, the testator became a citizen of the United States and of the State of Illinois, how has he lost the character of citizen with respect to either of these jurisdictions? There is no law in force by virtue of which any person of foreign nativity can become a naturalized citizen of the Philippine Islands; and it was, therefore, impossible for the testator, even if he had so desired, to expatriate himself from the United States and change his political status from a citizen of the United States to a citizen of these Islands. This being true, it is to be presumed that he retained his citizenship in the State of Illinois along with his status as a citizen of the United States. It would be novel doctrine to Americans living in the Philippine Islands to be told that by living here they lose their citizenship in the State of their naturalization or nativity.

We are not unmindful of the fact that when a citizen of one State leaves it and takes up his abode in another State with no intention of returning, he immediately acquires citizenship in the State of his new domicile. This is in accordance with that provision of the Fourteenth Amendment to the Constitution of the United States which says that every citizen of the United States is a citizen of the State where in he resides. The effect of this provision necessarily is that a person transferring his domicile from one State to another loses his citizenship in the State of his original above upon acquiring citizenship in the State of his new abode. The acquisition of the new State citizenship extinguishes the old. That situation, in our opinion, has no analogy to that which arises when a citizen of an American State comes to reside in the Philippine Islands. Here he cannot acquire a new citizenship; nor by the mere change of domicile does he lose that which he brought with him.

The proof adduced before the trial court must therefore be taken as showing that, at the time the will was executed, the testator was, as stated in the order of probate, a citizen of the State of Illinois. This, in connection with the circumstance that the petition does not even so much as deny such citizenship but only asserts that the testator was a resident of the Philippine Islands, demonstrates the impossibility of setting the probate aside for lack of the necessary citizenship on the part of the testator. As already observed, the allegation of the petition on this point is wholly insufficient to justify any relief whatever.

Upon the other point — as to whether the will was executed in conformity with the statutes of the State of Illinois — we note that it does not affirmatively appear from the transaction of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. that section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our

courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same action, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based on such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tent to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.

But it is insisted in the brief for the appellant that the will in question was not properly admissible to probate because it contains provisions which cannot be given effect consistently with the laws of the Philippine Islands; and it is suggested that as the petitioner is a legitimate heir of the testator she cannot be deprived of the legitime to which she is entitled under the law governing testamentary successions in these Islands. Upon this point it is sufficient to say that the probate of the will does not affect the intrinsic validity of its provisions, the decree of probate being conclusive only as regards the due execution of the will. (Code of Civil Procedure, secs. 625, 614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep., 119, 121; Limjuco vs.Ganara, 11 Phil. Rep., 393, 395.)

If, therefore, upon the distribution of this estate, it should appear that any legacy given by the will or other disposition made therein is contrary to the law applicable in such case, the will must necessarily yield upon that point and the law must prevail. Nevertheless, it should not be forgotten that the intrinsic validity of the provisions of this will must be determined by the law of Illinois and not, as the appellant apparently assumes, by the general provisions here applicable in such matters; for in the second paragraph of article 10 of the Civil Code it is declared that "legal and testamentary successions, with regard to the order of succession, as well as to the amount of the successional rights and to the intrinsic validity of their provisions, shall be regulated by the laws of the nation of the person whose succession is in question, whatever may be the nature of the property and the country where it may be situate."

From what has been said, it is, we think, manifest that the petition submitted to the court below on October 31, 1916, was entirely insufficient to warrant the setting aside of the other probating the will in question, whether said petition be considered as an attack on the validity of the decree for error apparent, or whether it be considered as an application for a rehearing based upon the new evidence submitted in the affidavits which accompany the petition. And in this latter aspect the petition is subject to the further fatal defect that it was not presented within the time allowed by law.

It follows that the trial court committed no error in denying the relief sought. The order appealed from is accordingly affirmed with costs. So ordered.

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

G.R. No. L-28328             October 2, 1928

In the matter of the will of Jennie Rider Babcock. BEATRICE BABCOCK TEMPLETON, petitioner-appellee, vs.WILLIAM RIDER BABCOCK, opponent-appellant.

J. F. Boomer for appellant.Ohnick and McFie for appellee.

 

STREET, J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the holographic will of Jennie Rider Babcock.

The petition in this case was filed in the Court of First Instance of Manila on September 8, 1926, by Beatrice Babcock Templeton to secure probate of a paper writing purporting to express the wishes of Jennie Rider Babcock, deceased, with reference to the post mortem disposition of all her property, consisting of corporate stock, jewelry, personal effects and money. This paper bears date of May 26, 1926, is written wholly in the handwriting of the deceased and bears her proper signature. It was found among the effects of the deceased shortly after her death, which occurred on September 3, 1926. When found, it was contained in an envelope indorsed with the name of her daughter, Mrs. G. D. Templeton, and son, Mr. W. R. Babcock.

The purport of the paper is to the effect that the writer leaves her stock and money to her three grandchildren, bearing the surname Templeton, namely, G. Douglas Templeton, Jr., Constance Babcock Templeton, and Billy Babcock Templeton, but the writer further states that all interest and dividends are to be given to her only daughter, Mrs. Templeton, as well as her jewelry and personal effects "for their support until the youngest is of age."

The aforesaid instrument is admittedly of a testamentary character, but it is not executed as a will under the provisions of law generally governing the execution of the wills made in the Philippine Islands. The instrument therefore is not offered for probate under section 618 and related provisions of the Code of Civil Procedure but under section 636, which authorizes probate by our courts of a will made within the Philippine Islands by a citizen or subject of another state or country, when such will is executed in accordance with the law of the state or country of which the testator is a citizen of subject, and which might be proved under the law of such state or country.

It is alleged in the petition that the testatrix was at the time of her death a resident of the State of California, though temporarily residing in Manila at the time of her death; and the parties have agreed that this paper could be proved in the State of California as the holographic will of the deceased. The sole question in controversy therefore now is, whether the testatrix, at the time will was made, had the status of a citizen of the State of California, as required by section 636 of our Code of Civil Procedure. But, under the first paragraph of the Fourteenth Amendment to the Constitution of the United States, the citizenship of a person born in the United States, as was the testatrix in this case, is dependent upon the place of residence, or domicile; and the question before us ultimately resolves itself into a contention over the point whether the testatrix had ever acquired a legal domicile in the State of California and whether, supposing such domicile to have been acquired, she may not have lost it as a result of her removal from that state. The proponent of the will, Beatrice Babcock Templeton, mother of the three children who are principal beneficiaries of the will, contends that the testatrix acquired a legal domicile in the State of California by residence therein over two periods of time between 1917 and 1923, and that such domicile was never lost. William Rider Babcock, the brother of the proponent, resist the probate of the will on the ground that the testatrix had never acquired a legal domicile in the State of California, or that, if she had, such domicile had been lost under the conditions presently to be discussed.

It appears that Jennie Rider Babcock had spent her married life in the State of Massachusetts; but, her husband having died in 1908, she removed a year later to Manila where she lived with her son, W. R. Babcock, until in 1917, when she joined the family of her daughter, Mrs. B. B. Templeton in San Francisco, California. During these years W. R. Babcock and G. D. Templeton, son and son-in-law, respectively, of the testatrix, were running a business in Manila, which had been incorporated under the style of Babcock & Templeton, Inc., with Babcock as president of the company and Templeton as its vice-president. As a branch office had been opened in San Francisco requiring the presence of an officer of the company, Templeton took up his abode in San Francisco for the purpose of managing the business of said branch. The testatrix, it may be noted, had acquired stock in the company and had no other independent source of income than the dividends derived therefrom.

After remaining with the Templetons in San Francisco for several months, the testatrix returned to Manila in July, 1918. During this stay in Manila she occupied an apartment in the house of her son, where she remained until August, 1920. She then returned to San Francisco and lived with the Templetons until May, 1923. From a legal point of view, the character and incidents of this second sojourn in San Francisco constitute the most important fact in the case, since the trial court

deduced from her acts and statements the conclusion that she had acquired a domicile in California. Among the features of importance which characterize the incident we note the following: First, her son-in-law, Templeton, owned a home in San Francisco in which he lived, without any apparent intention of removing from the state; secondly, upon arriving in San Francisco, the testatrix established herself as a practitioner in Christian Science, a cult to which she was attached: thirdly she engaged in political activities, taking part in a parade advertising a cause in which she was interested, and she voted in at least one general election that occurred in that state; fourthly, she formed an attachment for California, and in many conversations thereafter with intimate friends, she referred to California as her home state expressed her intention of returning there and building a home in which to live. Indeed, it appears in evidence that only a short time before her death in Manila she was acquiring a few pieces of Spanish furniture to take back to her to California.

In the year 1923, Babcock & Templeton, Inc., decided to close its office in San Francisco and to open a branch in New York City. This made it necessary for G.D. Templeton to remove with his family to New York State. He accordingly sold his home in San Francisco and went to live in New York. This step on the part of the Templetons determined the course of the testatrix, who gathered her personal effects together and accompanied them to New York, leaving behind in the care of friends three pieces of furniture to which she was especially attached and which she perhaps thought she might use later in California. Upon arriving in New York State, the Templetons established themselves in White Plains, near New York City. Here the testatrix occupied part of the apartment which the Templetons had taken, but she appears to have supplied the furniture necessary for her own use. Not long thereafter, the testatrix announced herself again in the Christian Science Journal as a practitioner of Christian Science in White Plains.

The sojourn of the testatrix in New York was apparently not congenial, since, after a few months of experience in that city, she returned to Manila, arriving at this place in January, 1924. The impression that conditions in New York made upon her may be gauged by a statement subsequently made by her to one of her friends in Manila, "Deliver me from living in New York." What really brought her back to the Philippine Islands, apart from her dislike to the environment in New York, is not certain, but she suggested to friends here, after arriving, that a desire to economize the cost of living may have had a part in her course.

A circumstance to which importance is attached by the appellant is that, in the Passenger Manifest of the vessel upon which she came to Manila, she caused New York City to be entered opposite her name in the column indicating "Last Permanent Residence," it being insisted that this is an admission on her part tending to show the acquisition by her of a domicile in New York State. We consider this circumstance of no probative force in connection with the issues of this lawsuit. The Passenger Manifest gave the passenger no choice about indicating whether New York was the place of last residence or the place of last permanent residence, and of course when she told the ship's official that she was from New York City, the name of this place necessarily had to go down in the column mentioned. As little importance is to be attached to her Baggage Declaration and Entry, made on the same voyage before disembarking at Manila, in which she stated that she was a

resident of Manila. Papers of this character are not commonly written with legal precision; and the circumstances that she had lived many years in Manila and was coming back to this city, sufficiently explains why she claimed to be a resident of Manila in that declaration without making any conclusive commitment as to the place of her domicile in law.

Of some importance, as throwing light upon the state of her mind towards California and the intention with which she removed from that state, are the numerous conversations, after her return to Manila in 1924, in which she revealed an intention of returning to live in California. It is evident from the proof that the removal of the testatrix from California to New York did not proceed from her volition but resulted from circumstances over which she had no primary control, her motive being found in her desire to be with her daughter and grandchildren. It may also be here stated that the testatrix had kin in New York State whom she had visited more than once during her above in California; and she appears to have inherited some property from a sister who had been living in New York and who died before the return of the testatrix to the Philippine Islands.

The finding of the trial court to the effect that the deceased had acquired a domicile in the State of California is in our opinion based upon facts which sufficiently support said finding. In particular, we are of the opinion that the trial court committed no error in attaching importance to the circumstance that the deceased had voted in California elections. Though not of course conclusive of acquisition of domicile, voting in a place is an important circumstance and, where the evidence is scanty, may have decisive weight. The exercise of the franchise is one of the highest prerogatives of citizenship, and in no other act of his life does the citizen identify his interests with the state in which he lives more than in the act of voting. 1awph!l.net

This record supplies no material with which to refute the conclusion of the trial court that a domicile was thus acquired by the testatrix in the state of California; and what we consider the more critical question is whether or not the domicile thus acquired was subsequently lost by removal from said state. But upon this point also, we are of the opinion that the conclusion of the trial court, to the effect that acquired domicile had not been lost, is in conformity with the evidence. It is a recognized rule that the intention with which removal is made from a particular state determines whether or not the domicile is abandoned; and intention is revealed only in the acts and declaration of the person concerned.

In the case before us there are no declarations of the testatrix in evidence which would tend to show that, upon removal to New York, she had any intention of acquiring a legal domicile in that state. On the contrary her short stay there and her repeated statements made thereafter show that she could not possibly have had any intention of making that state a place of permanent abode. As was pointed out by this court in In Re Estate of Johnson (39 Phil., 156), a person transferring his domicile from one state of the American Union to another loses his domicile in the state of his earlier abode upon acquiring a domicile, or citizenship, in the state of his new abode. The acquisition of the new legal domicile extinguishes the old. Certainly in this case it cannot be said with any propriety that the domicile of the testatrix in California was suppressed by the acquisition on a new domicile in New York State.

But it is said that, even supposing that the testatrix had not acquired a domicile in New York, yet she was a resident of the Philippine Islands at the same time of her death, and that, having established herself in these Islands as a place of permanent abode, her will should not be admitted to probate as the will of a citizen of another state. But the proof shows that however long the testatrix had resided in the Philippine Islands, she at no time had any intention of residing here permanently. In the contrary, her repeated declarations reveal a fixed intention of returning ultimately to the United States.

Again, it is a rule that a citizen of the United States cannot acquire citizenship in the Philippine Islands by residence here, however long continued (In Re Estate of Johnson, 39 Phil., 156). The testatrix therefore remained at the time of her death a citizen of the United States. Her will is therefore provable under section 636 of the Code of Civil Procedure as the will of a citizen of another state or country; and the only question to be determined in this case is, which state of the American Union has the best claim to her citizenship, a question, which, as we have already seen, turns upon domicile; and there is no other state whose citizenship she can claim, according the evidence in this record, with as good right as the State of California. Massachusetts, the place of her marital abode, has not been entered in the competition, and we must decide between California and New York. As between these two states, California was surely the state of her legal domicile, acquired by choice and by residing therein. Furthermore, this California domicile has not been supplanted by a later domicile acquired in New York. It results that the trial court committed no error in considering the testatrix a citizen of the State of California, for the purpose of admitting this will to probate.

The judgment will therefore be affirmed, and it is so ordered, with costs against the appellant.

Avancena, C.J., Johnson, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

[G.R. No. L-2071. September 19, 1950.]

Testate estate of Isabel V. Florendo, deceased. TIRSO DACANAY, Petitioner-Appellant, v. PEDRO V. FLORENDO ET

AL., Oppositors-Appellees. 

Sotto & Sotto, for Appellant. 

Alafriz & Alafriz, for Appellees. 

SYLLABUS

1. WILLS; EXECUTION OF JOINT EXPRESSION BY TWO OR MORE TESTATORS OF THEIR WILLS IN A DOCUMENT BY ONE ACT. — The prohibition of article 669 or the expression by two or more testators of their wills in a single document and by one act, rather than against mutual or reciprocal, wills may be separately executed. 

2. ID.; PROVISION OF ARTICLE 669, CIVIL CODE, IS NOT UNWISE. — The provision of

article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for

the benefit of a third person, is not unwise and is not against public policy. 

3. ID.; PROVISION OF ARTICLE 669, CIVIL CODE, IS STILL IN FORCE. — Considering the wisdom of the provision of this article 669 and the fact that it has not been

repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, it is believed that said article of the Civil Code is still in force. (Doctrine of In re Will of

Bilbao G.R. No. L-2200, August 2, 1950, reiterated.)

D E C I S I O N

OZAETA, J.:

This is a special proceeding commenced in the Court of First Instance of La Union to probate a joint and reciprocal will executed by the spouses Isabel V. Florendo and Tirso Dacanay on October 20, 1940. Isabel V. Florendo having died, her surviving spouse Tirso Dacanay is seeking to probate said joint and reciprocal will, which provides in substance that whoever of the spouses, joint testators, shall survive the other, shall inherit all the properties of the latter, with an agreement as to how the surviving spouse shall dispose of the properties in case of his or her demise. 

The relatives of the deceased Isabel V. Florendo opposed the probate of said will on various statutory grounds. 

Before hearing the evidence the trial court, after requiring and receiving from counsel for both parties written arguments on the question of whether or not the said joint and reciprocal will may be probated in view of article 669 of the Civil Code, issued an order dismissing the petition for probate on the ground that said will is null and void ab initio as having been executed in violation of article 669 of the Civil Code. From that order the proponent of the will has appealed. 

Article 669 of the Civil Code reads as follows:jgc:chanrobles.com.ph

"ART. 669. Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person."cralaw virtua1aw library

We agree with appellant’s view, supported by eminent commentators, that the prohibition of article 669 of the Civil Code is directed against the execution of a joint will, or the expression by two or more testators of their wills in a single document and by one act, rather than against mutual or reciprocal wills, which may be separately executed. Upon this premise, however, appellant argues that article 669 of the Civil Code has been repealed by Act No. 190, which he claims provides for and regulates the extrinsic formalities of wills, contending that whether two wills should be executed conjointly or separately is but a matter of extrinsic formality. 

The question now raised by appellant has recently been decided by this court adversely to him in In re Will of Victor Bilbao, supra" p. 144. It appears in that case that on October 6, 1931, the spouses Victor Bilbao and Ramona M. Navarro executed a will conjointly, whereby they directed that "all of our respective private properties both real and personal, and all of our conjugal properties, and any other property belonging to either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may remain the surviving spouse of the other." That will was denied probate by the Court of First Instance of Negros Oriental on the ground that it was prohibited by article 669 of the Civil Code. The surviving spouse as proponent of the joint will also contended that said article of the Civil Code has been repealed by sections 614 and 618 of the Code of Civil Procedure, Act No. 190. In deciding that question this court, speaking through Mr. Justice Montemayor, said:jgc:chanrobles.com.ph

"We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure. 

x         x          x

"The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this provision, especially as regards husband and wife, is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other. 

"Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion. Mr. Justice Willard as shown by his Notes on the Civil Code, on page 48 believes that this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite Justice Willard’s opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine

Legislature that passed this Act and approved the New Civil Code, including the members of the Code Commission who prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure."cralaw virtua1aw library

In view of the foregoing, the order appealed from is affirmed, with costs against the Appellant. 

Moran, C.J., Paras, Feria, Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner, vs.HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

 

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according

to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition — a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of

the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from

questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), took no part.

G.R. Nos. L-3087 and L-3088             July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs.In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator-appellee.

Claro M. Recto for appellant.Sison and Aruego for appellee.

PADILLA, J.:

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000.

On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the

said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).

There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.

As to the lost will, section 6, Rule 77, provides:

No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto,

Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory,Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory,  Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).

Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).

Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).

If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from

Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.

Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.).

If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese.

Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino.

Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent

witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses.

On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmariñas street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).

The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).

As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides:

Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

Section 3 provides:

If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.

The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties.

The order of the municipal district court of Amoy, China, which reads as follows:

ORDER:

SEE BELOW

The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court.

Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China.

HUANG KUANG CHENGClerk of Court

CHIANG TENG HWAJudge

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country.

The decree appealed from is affirmed, without pronouncement as to costs.

Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner, vs.HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent.

Natividad T. Perez for petitioner.

Benedicto T. Librojo for private respondents.

 

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.

We grant the petition.

II

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:

If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that I predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption (Rollo, p. 41).

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband. Article VIII of her will states:

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. (Rollo, p. 31).

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she

be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.

On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration.

As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52.

On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983.

Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113).

On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix

of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses.

Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160).

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185).

Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are

payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248).

On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.

On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments.

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records, p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985.

On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381).

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect.

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no

compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393).

On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).

On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405-407).

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).

Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings.

II

Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G");

(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1");

(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");

(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");

(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");

(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F").

(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1");

(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");

(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10");

(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5");

(k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and

(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other’s signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).

Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative.

The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the

provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding."

A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.

SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Cruz, J., is on leave.

G.R. No. L-23145      November 29, 1968

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary administrator-appellee, vs.BENGUET CONSOLIDATED, INC., oppositor-appellant.

Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.

FERNANDO, J.:

Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust Company of New York, United States of America, of the estate of the deceased Idonah Slade Perkins, who died in New York City on March 27, 1960, to surrender to the ancillary administrator in the Philippines the stock certificates owned by her in a Philippine corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of local creditors, the lower court, then presided by the Honorable Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After considering the motion of the ancillary administrator, dated February 11, 1964, as well as the opposition filed by the Benguet Consolidated, Inc., the Court hereby (1) considers as lost for all purposes in connection with the administration and liquidation of the Philippine estate of Idonah Slade Perkins the stock certificates covering the 33,002 shares of stock standing in her name in the books of the Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs said corporation to issue new certificates in lieu thereof, the same to be delivered by said corporation to either the incumbent ancillary administrator or to the Probate Division of this Court."1

From such an order, an appeal was taken to this Court not by the domiciliary administrator, the County Trust Company of New York, but by the Philippine corporation, the Benguet Consolidated, Inc. The appeal cannot possibly prosper. The challenged order represents a response and expresses a policy, to paraphrase Frankfurter, arising out of a specific problem, addressed to the attainment of specific ends by the use of specific remedies, with full and ample support from legal doctrines of weight and significance.

The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah Slade Perkins, who died on March 27, 1960 in New York City, left among others, two stock certificates covering 33,002 shares of appellant, the certificates being in the possession of the County Trust Company of New York, which as noted, is the domiciliary administrator of the estate of the deceased.2 Then came this portion of the appellant's brief: "On August 12, 1960, Prospero Sanidad instituted ancillary administration proceedings in the Court of First Instance of Manila; Lazaro A. Marquez was appointed ancillary administrator, and on January

22, 1963, he was substituted by the appellee Renato D. Tayag. A dispute arose between the domiciary administrator in New York and the ancillary administrator in the Philippines as to which of them was entitled to the possession of the stock certificates in question. On January 27, 1964, the Court of First Instance of Manila ordered the domiciliary administrator, County Trust Company, to "produce and deposit" them with the ancillary administrator or with the Clerk of Court. The domiciliary administrator did not comply with the order, and on February 11, 1964, the ancillary administrator petitioned the court to "issue an order declaring the certificate or certificates of stocks covering the 33,002 shares issued in the name of Idonah Slade Perkins by Benguet Consolidated, Inc., be declared [or] considered as lost."3

It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far as it is concerned as to "who is entitled to the possession of the stock certificates in question; appellant opposed the petition of the ancillary administrator because the said stock certificates are in existence, they are today in the possession of the domiciliary administrator, the County Trust Company, in New York, U.S.A...."4

It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or considered as lost. Moreover, it would allege that there was a failure to observe certain requirements of its by-laws before new stock certificates could be issued. Hence, its appeal.

As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order constitutes an emphatic affirmation of judicial authority sought to be emasculated by the wilful conduct of the domiciliary administrator in refusing to accord obedience to a court decree. How, then, can this order be stigmatized as illegal?

As is true of many problems confronting the judiciary, such a response was called for by the realities of the situation. What cannot be ignored is that conduct bordering on wilful defiance, if it had not actually reached it, cannot without undue loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in flexibility and resourcefulness as to preclude such a solution, the more so as deeper reflection would make clear its being buttressed by indisputable principles and supported by the strongest policy considerations.

It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no less than that of the country. Through this challenged order, there is thus dispelled the atmosphere of contingent frustration brought about by the persistence of the domiciliary administrator to hold on to the stock certificates after it had, as admitted, voluntarily submitted itself to the jurisdiction of the lower court by entering its appearance through counsel on June 27, 1963, and filing a petition for relief from a previous order of March 15, 1963.

Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was decreed. For without it, what it had been decided would be set at naught and nullified. Unless such a blatant disregard by the domiciliary administrator, with residence abroad, of what was previously ordained by a court

order could be thus remedied, it would have entailed, insofar as this matter was concerned, not a partial but a well-nigh complete paralysis of judicial authority.

1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary administrator to gain control and possession of all assets of the decedent within the jurisdiction of the Philippines. Nor could it. Such a power is inherent in his duty to settle her estate and satisfy the claims of local creditors.5 As Justice Tuason speaking for this Court made clear, it is a "general rule universally recognized" that administration, whether principal or ancillary, certainly "extends to the assets of a decedent found within the state or country where it was granted," the corollary being "that an administrator appointed in one state or country has no power over property in another state or country."6

It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set forth by Justice Malcolm. Thus: "It is often necessary to have more than one administration of an estate. When a person dies intestate owning property in the country of his domicile as well as in a foreign country, administration is had in both countries. That which is granted in the jurisdiction of decedent's last domicile is termed the principal administration, while any other administration is termed the ancillary administration. The reason for the latter is because a grant of administration does not ex proprio vigore have any effect beyond the limits of the country in which it is granted. Hence, an administrator appointed in a foreign state has no authority in the [Philippines]. The ancillary administration is proper, whenever a person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of the deceased liable for his individual debts or to be distributed among his heirs."7

It would follow then that the authority of the probate court to require that ancillary administrator's right to "the stock certificates covering the 33,002 shares ... standing in her name in the books of [appellant] Benguet Consolidated, Inc...." be respected is equally beyond question. For appellant is a Philippine corporation owing full allegiance and subject to the unrestricted jurisdiction of local courts. Its shares of stock cannot therefore be considered in any wise as immune from lawful court orders.

Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue8 finds application. "In the instant case, the actual situs of the shares of stock is in the Philippines, the corporation being domiciled [here]." To the force of the above undeniable proposition, not even appellant is insensible. It does not dispute it. Nor could it successfully do so even if it were so minded.

2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the legality of the challenged order, how does appellant, Benguet Consolidated, Inc. propose to carry the extremely heavy burden of persuasion of precisely demonstrating the contrary? It would assign as the basic error allegedly committed by the lower court its "considering as lost the stock certificates covering 33,002 shares of Benguet belonging to the deceased Idonah Slade Perkins, ..."9 More specifically, appellant would stress that the "lower court could not "consider as lost" the stock certificates in question when, as a matter of fact, his Honor the trial Judge knew, and does know, and it is admitted by the appellee, that

the said stock certificates are in existence and are today in the possession of the domiciliary administrator in New York."10

There may be an element of fiction in the above view of the lower court. That certainly does not suffice to call for the reversal of the appealed order. Since there is a refusal, persistently adhered to by the domiciliary administrator in New York, to deliver the shares of stocks of appellant corporation owned by the decedent to the ancillary administrator in the Philippines, there was nothing unreasonable or arbitrary in considering them as lost and requiring the appellant to issue new certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator could be discharged and his responsibility fulfilled.

Any other view would result in the compliance to a valid judicial order being made to depend on the uncontrolled discretion of the party or entity, in this case domiciled abroad, which thus far has shown the utmost persistence in refusing to yield obedience. Certainly, appellant would not be heard to contend in all seriousness that a judicial decree could be treated as a mere scrap of paper, the court issuing it being powerless to remedy its flagrant disregard.

It may be admitted of course that such alleged loss as found by the lower court did not correspond exactly with the facts. To be more blunt, the quality of truth may be lacking in such a conclusion arrived at. It is to be remembered however, again to borrow from Frankfurter, "that fictions which the law may rely upon in the pursuit of legitimate ends have played an important part in its development."11

Speaking of the common law in its earlier period, Cardozo could state fictions "were devices to advance the ends of justice, [even if] clumsy and at times offensive."12 Some of them have persisted even to the present, that eminent jurist, noting "the quasi contract, the adopted child, the constructive trust, all of flourishing vitality, to attest the empire of "as if" today."13 He likewise noted "a class of fictions of another order, the fiction which is a working tool of thought, but which at times hides itself from view till reflection and analysis have brought it to the light."14

What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in the law. There should be then on the part of the appellant a further refinement in the catholicity of its condemnation of such judicial technique. If ever an occasion did call for the employment of a legal fiction to put an end to the anomalous situation of a valid judicial order being disregarded with apparent impunity, this is it. What is thus most obvious is that this particular alleged error does not carry persuasion.

3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking one of the provisions of its by-laws which would set forth the procedure to be followed in case of a lost, stolen or destroyed stock certificate; it would stress that in the event of a contest or the pendency of an action regarding ownership of such certificate or certificates of stock allegedly lost, stolen or destroyed, the issuance of a new certificate or certificates would await the "final decision by [a] court regarding the ownership [thereof]."15

Such reliance is misplaced. In the first place, there is no such occasion to apply such by-law. It is admitted that the foreign domiciliary administrator did not appeal from the order now in question. Moreover, there is likewise the express admission of appellant that as far as it is concerned, "it is immaterial ... who is entitled to the possession of the stock certificates ..." Even if such were not the case, it would be a legal absurdity to impart to such a provision conclusiveness and finality. Assuming that a contrariety exists between the above by-law and the command of a court decree, the latter is to be followed.

It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which, however, the judiciary must yield deference, when appropriately invoked and deemed applicable. It would be most highly unorthodox, however, if a corporate by-law would be accorded such a high estate in the jural order that a court must not only take note of it but yield to its alleged controlling force.

The fear of appellant of a contingent liability with which it could be saddled unless the appealed order be set aside for its inconsistency with one of its by-laws does not impress us. Its obedience to a lawful court order certainly constitutes a valid defense, assuming that such apprehension of a possible court action against it could possibly materialize. Thus far, nothing in the circumstances as they have developed gives substance to such a fear. Gossamer possibilities of a future prejudice to appellant do not suffice to nullify the lawful exercise of judicial authority.

4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with implications at war with the basic postulates of corporate theory.

We start with the undeniable premise that, "a corporation is an artificial being created by operation of law...."16 It owes its life to the state, its birth being purely dependent on its will. As Berle so aptly stated: "Classically, a corporation was conceived as an artificial person, owing its existence through creation by a sovereign power."17As a matter of fact, the statutory language employed owes much to Chief Justice Marshall, who in the Dartmouth College decision defined a corporation precisely as "an artificial being, invisible, intangible, and existing only in contemplation of law."18

The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and in reality a person, but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial person distinct and separate from its individual stockholders.... It owes its existence to law. It is an artificial person created by law for certain specific purposes, the extent of whose existence, powers and liberties is fixed by its charter."19 Dean Pound's terse summary, a juristic person, resulting from an association of human beings granted legal personality by the state, puts the matter neatly.20

There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from Friedmann, "is the reality of the group as a social and legal entity, independent of state recognition and concession."21 A corporation as known to Philippine jurisprudence is a creature without any existence until it has received the imprimatur of the state according to law. It is logically inconceivable therefore that

it will have rights and privileges of a higher priority than that of its creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs, certainly not excluding the judiciary, whenever called upon to do so.

As a matter of fact, a corporation once it comes into being, following American law still of persuasive authority in our jurisdiction, comes more often within the ken of the judiciary than the other two coordinate branches. It institutes the appropriate court action to enforce its right. Correlatively, it is not immune from judicial control in those instances, where a duty under the law as ascertained in an appropriate legal proceeding is cast upon it.

To assert that it can choose which court order to follow and which to disregard is to confer upon it not autonomy which may be conceded but license which cannot be tolerated. It is to argue that it may, when so minded, overrule the state, the source of its very existence; it is to contend that what any of its governmental organs may lawfully require could be ignored at will. So extravagant a claim cannot possibly merit approval.

5. One last point. In Viloria v. Administrator of Veterans Affairs,22 it was shown that in a guardianship proceedings then pending in a lower court, the United States Veterans Administration filed a motion for the refund of a certain sum of money paid to the minor under guardianship, alleging that the lower court had previously granted its petition to consider the deceased father as not entitled to guerilla benefits according to a determination arrived at by its main office in the United States. The motion was denied. In seeking a reconsideration of such order, the Administrator relied on an American federal statute making his decisions "final and conclusive on all questions of law or fact" precluding any other American official to examine the matter anew, "except a judge or judges of the United States court."23 Reconsideration was denied, and the Administrator appealed.

In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion that the appeal should be rejected. The provisions of the U.S. Code, invoked by the appellant, make the decisions of the U.S. Veterans' Administrator final and conclusive when made on claims property submitted to him for resolution; but they are not applicable to the present case, where the Administrator is not acting as a judge but as a litigant. There is a great difference between actions against the Administrator (which must be filed strictly in accordance with the conditions that are imposed by the Veterans' Act, including the exclusive review by United States courts), and those actions where the Veterans' Administrator seeks a remedy from our courts and submits to their jurisdiction by filing actions therein. Our attention has not been called to any law or treaty that would make the findings of the Veterans' Administrator, in actions where he is a party, conclusive on our courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere subordinate instrumentalities of the Veterans' Administrator."

It is bad enough as the Viloria decision made patent for our judiciary to accept as final and conclusive, determinations made by foreign governmental agencies. It is infinitely worse if through the absence of any coercive power by our courts over juridical persons within our jurisdiction, the force and effectivity of their orders could

be made to depend on the whim or caprice of alien entities. It is difficult to imagine of a situation more offensive to the dignity of the bench or the honor of the country.

Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet Consolidated seems to be firmly committed as shown by its failure to accept the validity of the order complained of; it seeks its reversal. Certainly we must at all pains see to it that it does not succeed. The deplorable consequences attendant on appellant prevailing attest to the necessity of negative response from us. That is what appellant will get.

That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always easy to conjure extreme and even oppressive possibilities. That is not decisive. It does not settle the issue. What carries weight and conviction is the result arrived at, the just solution obtained, grounded in the soundest of legal doctrines and distinguished by its correspondence with what a sense of realism requires. For through the appealed order, the imperative requirement of justice according to law is satisfied and national dignity and honor maintained.

WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First Instance, dated May 18, 1964, is affirmed. With costs against oppositor-appelant Benguet Consolidated, Inc.

Makalintal, Zaldivar and Capistrano, JJ., concur.Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez and Castro, JJ., concur in the result.