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Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceasedREVEREND SANCHO ABADIA.SEVERINA A. VDA. DE ENRIQUEZ, ET AL.,petitioners-appellees,vs.MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A.Zosa and B. G. Advincula for appellants.C. de la Victoria for appellees.

MONTEMAYOR, J .:

On September 6, 1923, Father Sancho Abadia,parish priest of Talisay, Cebu, executed adocument purporting to be his Last Will andTestament now marked Exhibit "A". Resident ofthe City of Cebu, he died on January 14, 1943,in the municipality of Aloguinsan, Cebu, wherehe was an evacuee. He left properties estimatedat P8,000 in value. On October 2, 1946, one

Andres Enriquez, one of the legatees in Exhibit"A", filed a petition for its probate in the Court ofFirst Instance of Cebu. Some cousins and

nephews who would inherit the estate of thedeceased if he left no will, filed opposition.

During the hearing one of the attestingwitnesses, the other two being dead, testifiedwithout contradiction that in his presence and inthe presence of his co-witnesses, FatherSancho wrote out in longhand Exhibit "A" inSpanish which the testator spoke andunderstood; that he (testator) signed on he lefthand margin of the front page of each of thethree folios or sheets of which the document is

composed, and numbered the same with Arabicnumerals, and finally signed his name at theend of his writing at the last page, all this, in thepresence of the three attesting witnesses aftertelling that it was his last will and that the saidthree witnesses signed their names on the lastpage after the attestation clause in his presenceand in the presence of each other. Theoppositors did not submit any evidence.

The learned trial court found and declaredExhibit "A" to be a holographic will; that it was in

the handwriting of the testator and that althoughat the time it was executed and at the time ofthe testator's death, holographic wills were notpermitted by law still, because at the time of thehearing and when the case was to be decidedthe new Civil Code was already in force, whichCode permitted the execution of holographicwills, under a liberal view, and to carry out the

intention of the testator which according to thetrial court is the controlling factor and mayoverride any defect in form, said trial court byorder dated January 24, 1952, admitted toprobate Exhibit "A", as the Last Will andTestament of Father Sancho Abadia. Theoppositors are appealing from that decision; andbecause only questions of law are involved inthe appeal, the case was certified to us by theCourt of Appeals.

The new Civil Code (Republic Act No. 386)under article 810 thereof provides that a person

may execute a holographic will which must beentirely written, dated and signed by the testatorhimself and need not be witnessed. It is a fact,however, that at the time that Exhibit "A" wasexecuted in 1923 and at the time that Father

Abadia died in 1943, holographic wills were notpermitted, and the law at the time imposedcertain requirements for the execution of wills,such as numbering correlatively each page (notfolio or sheet) in letters and signing on the lefthand margin by the testator and by the threeattesting witnesses, requirements which werenot complied with in Exhibit "A" because theback pages of the first two folios of the will werenot signed by any one, not even by the testatorand were not numbered, and as to the threefront pages, they were signed only by thetestator.

Interpreting and applying this requirement thisCourt in the case of In re Estate of Saguinsin,41 Phil., 875, 879, referring to the failure of thetestator and his witnesses to sign on the lefthand margin of every page, said:

. . . . This defect is radical and totallyvitiates the testament. It is not enoughthat the signatures guaranteeingauthenticity should appear upon twofolios or leaves; three pages havingbeen written on, the authenticity of allthree of them should be guaranteed bythe signature of the alleged testatrix andher witnesses.

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And in the case ofAspe vs. Prieto, 46 Phil., 700,referring to the same requirement, this Courtdeclared:

From an examination of the document inquestion, it appears that the left marginsof the six pages of the document aresigned only by Ventura Prieto. The

noncompliance with section 2 of Act No.2645 by the attesting witnesses whoomitted to sign with the testator at theleft margin of each of the five pages ofthe document alleged to be the will ofVentura Prieto, is a fatal defect thatconstitutes an obstacle to its probate.

What is the law to apply to the probate of Exh."A"? May we apply the provisions of the newCivil Code which not allows holographic wills,like Exhibit "A" which provisions were invokedby the appellee-petitioner and applied by the

lower court? But article 795 of this same newCivil Code expressly provides: "The validity of awill as to its form depends upon the observanceof the law in force at the time it is made." Theabove provision is but an expression orstatement of the weight of authority to the affectthat the validity of a will is to be judged not bythe law enforce at the time of the testator'sdeath or at the time the supposed will ispresented in court for probate or when thepetition is decided by the court but at the timethe instrument was executed. One reason in

support of the rule is that although the willoperates upon and after the death of thetestator, the wishes of the testator about thedisposition of his estate among his heirs andamong the legatees is given solemn expressionat the time the will is executed, and in reality,the legacy or bequest then becomes acompleted act. This ruling has been laid downby this court in the case of In re Will of Riosa, 39Phil., 23. It is a wholesome doctrine and shouldbe followed.

Of course, there is the view that the intention of

the testator should be the ruling and controllingfactor and that all adequate remedies andinterpretations should be resorted to in order tocarry out said intention, and that when statutespassed after the execution of the will and afterthe death of the testator lessen the formalitiesrequired by law for the execution of wills, saidsubsequent statutes should be applied so as tovalidate wills defectively executed according tothe law in force at the time of execution.However, we should not forget that from the dayof the death of the testator, if he leaves a will,

the title of the legatees and devisees under itbecomes a vested right, protected under thedue process clause of the constitution against asubsequent change in the statute adding newlegal requirements of execution of wills whichwould invalidate such a will. By parity ofreasoning, when one executes a will which isinvalid for failure to observe and follow the legal

requirements at the time of its execution thenupon his death he should be regarded anddeclared as having died intestate, and his heirswill then inherit by intestate succession, and nosubsequent law with more liberal requirementsor which dispenses with such requirements asto execution should be allowed to validate adefective will and thereby divest the heirs oftheir vested rights in the estate by intestatesuccession. The general rule is that theLegislature can not validate void wills (57 Am.Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealedfrom is reversed, and Exhibit "A" is deniedprobate. With costs.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-5064 February 27, 1953

BIENVENIDO A. IBARLE,plaintiff-appellant,vs.ESPERANZA M. PO,defendant-appellant.

Quirico del Mar for appellant.Daniel P. Tumulak and Conchita F. Mielappellee.

TUASON, J.:

This action commenced in the Court of FirstInstance of Cebu to annul a deed of sale

conveying to the defendant, in consideration ofP1,700, one undivided half of a parcel of landwhich previously had been sold, along with theother half, by the same vendor to the plaintiff'sgrantors. judgment was against the plaintiff.

The case was submitted for decision upon anagreed statement of facts, the pertinent parts ofwhich are thus summarized in the appealeddecision:

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ALIPIO ABAJA and NOELABELLAR,respondents.

D E C I S I O N

CARPIO, J .:

The Case

Before the Court is a petition forreview1assailing the Decision2of the Court of

Appeals of 12 January 2001 in CA-G.R. CV No.47644. The Court of Appeals sustained theResolution3of the Regional Trial Court ofKabankalan, Negros Occidental, Branch 61("RTC-Kabankalan"), admitting to probate thelast will and testament of Alipio Abada("Abada").

The Antecedent Facts

Abada died sometime in May 1940.4His widowPaula Toray ("Toray") died sometime inSeptember 1943. Both died without legitimatechildren.

On 13 September 1968, Alipio C. Abaja("Alipio") filed with the then Court of FirstInstance of Negros Occidental (now RTC-Kabankalan) a petition,5docketed as SP No.070 (313-8668), for the probate of the last willand testament ("will") of Abada. Abada allegedlynamed as his testamentary heirs his naturalchildren Eulogio Abaja ("Eulogio") and RosarioCordova. Alipio is the son of Eulogio.

Nicanor Caponong ("Caponong") opposed thepetition on the ground that Abada left no willwhen he died in 1940. Caponong further allegedthat the will, if Abada really executed it, shouldbe disallowed for the following reasons: (1) itwas not executed and attested as required bylaw; (2) it was not intended as the last will of thetestator; and (3) it was procured by undue andimproper pressure and influence on the part of

the beneficiaries. Citing the same groundsinvoked by Caponong, the alleged intestateheirs of Abada, namely, Joel, Julian, Paz,Evangeline, Geronimo, Humberto, Teodora andElena Abada ("Joel Abada, et al."), and Levi,Leandro, Antonio, Florian, Hernani and CarmelaTronco ("Levi Tronco, et al."), also opposed thepetition. The oppositors are the nephews,nieces and grandchildren of Abada and Toray.

On 13 September 1968, Alipio filed anotherpetition6before the RTC-Kabankalan, docketed

as SP No. 071 (312-8669), for the probate ofthe last will and testament of Toray. Caponong,Joel Abada, et al., and Levi Tronco, et al.opposed the petition on the same grounds theycited in SP No. 070 (313-8668).

On 20 September 1968, Caponong filed apetition7before the RTC-Kabankalan, docketed

as SP No. 069 (309), praying for the issuance inhis name of letters of administration of theintestate estate of Abada and Toray.

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will ofToray. Since the oppositors did not file anymotion for reconsideration, the order allowingthe probate of Torays will became final andexecutory.8

In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble ("Caponong-Noble") Special

Administratrix of the estate of Abada andToray.9Caponong-Noble moved for thedismissal of the petition for probate of the will of

Abada. The RTC-Kabankalan denied the motionin an Order dated 20 August 1991.10

Sometime in 1993, during the proceedings,Presiding Judge Rodolfo S. Layumasdiscovered that in an Order dated 16 March1992, former Presiding Judge Edgardo Catilohad already submitted the case for decision.

Thus, the RTC-Kabankalan rendered aResolution dated 22 June 1994, as follows:

There having been sufficient notice to the heirsas required by law; that there is substantialcompliance with the formalities of a Will as thelaw directs and that the petitioner through histestimony and the deposition of Felix Gallinerowas able to establish the regularity of theexecution of the said Will and further, therebeing no evidence of bad faith and fraud, orsubstitution of the said Will, the Last Will andTestament of Alipio Abada dated June 4, 1932is admitted and allowed probate.

As prayed for by counsel, Noel Abbellar11isappointed administrator of the estate of PaulaToray who shall discharge his duties as suchafter letters of administration shall have beenissued in his favor and after taking his oath andfiling a bond in the amount of Ten Thousand(P10,000.00) Pesos.

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Mrs. Belinda C. Noble, the presentadministratrix of the estate of Alipio Abada shallcontinue discharging her duties as such untilfurther orders from this Court.

SO ORDERED.12

The RTC-Kabankalan ruled on the only issue

raised by the oppositors in their motions todismiss the petition for probate, that is, whetherthe will of Abada has an attestation clause asrequired by law. The RTC-Kabankalan furtherheld that the failure of the oppositors to raiseany other matter forecloses all other issues.

Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.

In a Decision promulgated on 12 January 2001,the Court of Appeals affirmed the Resolution of

the RTC-Kabankalan. The appellate court foundthat the RTC-Kabankalan properly admitted toprobate the will of Abada.

Hence, the present recourse by Caponong-Noble.

The Issues

The petition raises the following issues:

1. What laws apply to the probate of the

last will of Abada;

2. Whether the will of Abada requiresacknowledgment before a notarypublic;13

3. Whether the will must expressly statethat it is written in a language or dialectknown to the testator;

4. Whether the will of Abada has anattestation clause, and if so, whether theattestation clause complies with therequirements of the applicable laws;

5. Whether Caponong-Noble isprecluded from raising the issue ofwhether the will of Abada is written in alanguage known to Abada;

6. Whether evidence aliundemay beresorted to in the probate of the will of

Abada.

The Ruling of the Court

The Court of Appeals did not err in sustainingthe RTC-Kabankalan in admitting to probate thewill of Abada.

The Applicable Law

Abada executed his will on 4 June 1932. Thelaws in force at that time are the Civil Code of1889 or the Old Civil Code, and Act No. 190 orthe Code of Civil Procedure14which governedthe execution of wills before the enactment ofthe New Civil Code.

The matter in dispute in the present case isthe attestation clausein the will of Abada.Section 618 of the Code of Civil Procedure, asamended by Act No. 2645,15governs the form ofthe attestation clause of Abadas will.16Section

618 of the Code of Civil Procedure, asamended, provides:

SEC. 618. Requisites of will. No will, exceptas provided in the preceding section,17shall bevalid to pass any estate, real or personal, norcharge or affect the same, unless it be written inthe language or dialect known by the testatorand signed by him, or by the testators namewritten by some other person in his presence,and by his express direction, and attested andsubscribed by three or more credible witnessesin the presence of the testator and of each

other. The testator or the person requested byhim to write his name and the instrumentalwitnesses of the will, shall also sign, asaforesaid, each and every page thereof, on theleft margin, and said pages shall be numberedcorrelatively in letters placed on the upper partof each sheet. The attestation shall state thenumber of sheets or pages used, upon whichthe will is written, and the fact that the testatorsigned the will and every page thereof, orcaused some other person to write his name,under his express direction, in the presence ofthree witnesses, and the latter witnessed andsigned the will and all pages thereof in thepresence of the testator and of each other.

Requisites of a Will under the Code of CivilProcedure

Under Section 618 of the Code of CivilProcedure, the requisites of a will are thefollowing:

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(1) The will must be written in thelanguage or dialect known by thetestator;

(2) The will must be signed by thetestator, or by the testators namewritten by some other person in hispresence, and by his express direction;

(3) The will must be attested andsubscribed by three or more crediblewitnesses in the presence of the testatorand of each other;

(4) The testator or the person requestedby him to write his name and theinstrumental witnesses of the will mustsign each and every page of the will onthe left margin;

(5) The pages of the will must benumbered correlatively in letters placedon the upper part of each sheet;

(6) The attestation shall state thenumber of sheets or pages used, uponwhich the will is written, and the fact thatthe testator signed the will and everypage of the will, or caused some otherperson to write his name, under hisexpress direction, in the presence ofthree witnesses, and the witnesseswitnessed and signed the will and all

pages of the will in the presence of thetestator and of each other.

Caponong-Noble asserts that the will of Abadadoes not indicate that it is written in a languageor dialect known to the testator. Further, shemaintains that the will is not acknowledgedbefore a notary public. She cites in particular

Articles 804 and 805 of the Old Civil Code, thus:

Art. 804. Every will must be in writing andexecuted in [a] language or dialect known to the

testator.

Art. 806. Every will must be acknowledgedbefore a notary public by the testator and thewitnesses. xxx18

Caponong-Noble actually cited Articles 804 and806 of the NewCivil Code.19Article 804 of theOld Civil Code is about the rights andobligations of administrators of the property ofan absentee, while Article 806 of the Old CivilCode defines a legitime.

Articles 804 and 806 of the New Civil Code arenew provisions. Article 804 of the New CivilCode is taken from Section 618 of the Code ofCivil Procedure.20Article 806 of the New CivilCode is taken from Article 685 of the Old CivilCode21which provides:

Art. 685. The notary and two of the witnesses

who authenticate the will must be acquaintedwith the testator, or, should they not know him,he shall be identified by two witnesses who areacquainted with him and are known to thenotary and to the attesting witnesses. Thenotary and the witnesses shall also endeavor toassure themselves that the testator has, in their

judgment, the legal capacity required to make awill.

Witnesses authenticating a will without theattendance of a notary, in cases falling under

Articles 700 and 701, are also required to know

the testator.

However, the Code of CivilProcedure22repealed Article 685 of the Old CivilCode. Under the Code of Civil Procedure, theintervention of a notary is not necessary in theexecution of anywill.23Therefore, Abadas willdoes not require acknowledgment before anotary public.1awphi1.nt

Caponong-Noble points out that nowhere in thewill can one discern that Abada knew the

Spanish language. She alleges that such defectis fatal and must result in the disallowance ofthe will. On this issue, the Court of Appeals heldthat the matter was not raised in the motion todismiss, and that it is now too late to raise theissue on appeal. We agree with Caponong-Noble that the doctrine of estoppel does notapply in probate proceedings.24In addition, thelanguage used in the will is part of the requisitesunder Section 618 of the Code of CivilProcedure and the Court deems it proper topass upon this issue.

Nevertheless, Caponong-Nobles contentionmust still fail. There is no statutory requirementto state in the will itself that the testator knewthe language or dialect used in the will.25This isa matter that a party may establish byproof aliunde.26Caponong-Noble further arguesthat Alipio, in his testimony, has failed, amongothers, to show that Abada knew or understoodthe contents of the will and the Spanishlanguage used in the will. However, Alipiotestified that Abada used to gather Spanish-speaking people in their place. In these

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gatherings, Abada and his companions wouldtalk in the Spanish language.27This sufficientlyproves that Abada speaks the Spanishlanguage.

The Attestation Clause of Abadas Will

A scrutiny of Abadas will shows that it has an

attestation clause. The attestation clause ofAbadas will reads:

Suscrito y declarado por el testador AlipioAbada como su ultima voluntad y testamento enpresencia de nosotros, habiendo tambien eltestador firmado en nuestra presencia en elmargen izquierdo de todas y cada una de lashojas del mismo. Y en testimonio de ello, cadauno de nosotros lo firmamos en presencia denosotros y del testador al pie de estedocumento y en el margen izquierdo de todas ycada una de las dos hojas de que estacompuesto el mismo, las cuales estanpaginadas correlativamente con las letras"UNO" y "DOS en la parte superior de lacarrilla.28

Caponong-Noble proceeds to point out severaldefects in the attestation clause. Caponong-Noble alleges that the attestation clause fails tostate the number of pages on which the will iswritten.

The allegation has no merit. The phrase "en el

margen izquierdo de todas y cada una de lasdos hojas de que esta compuesto el mismo"which means "in the left margin of each andevery one of the two pages consisting of thesame" shows that the will consists of two pages.The pages are numbered correlatively with theletters "ONE" and "TWO" as can be gleanedfrom the phrase "las cuales estan paginadascorrelativamente con las letras "UNO" y "DOS."

Caponong-Noble further alleges that theattestation clause fails to state expressly that

the testator signed the will and its every page inthe presence of three witnesses. She then faultsthe Court of Appeals for applying to the presentcase the rule on substantial compliance found in

Article 809 of the New Civil Code.29

The first sentence of the attestation clausereads: "Suscrito y declarado por el testador

Alipio Abada como su ultima voluntad ytestamento en presencia de nosotros, habiendotambien el testador firmado en nuestra

presencia en el margen izquierdo de todas y

cada una de las hojas del mismo." The Englishtranslation is: "Subscribed and professed by thetestator Alipio Abada as his last will andtestament in our presence, the testator havingalso signed it in our presence on the left marginof each and every one of the pages of thesame." The attestation clause clearly states that

Abada signed the will and its every page in the

presence of the witnesses.

However, Caponong-Noble is correct in sayingthat the attestation clause does not indicate thenumber of witnesses. On this point, the Courtagrees with the appellate court in applying therule on substantial compliance in determiningthe number of witnesses. While the attestationclause does not state the number of witnesses,a close inspection of the will shows that threewitnesses signed it.

This Court has applied the rule on substantial

compliance even before the effectivity of theNew Civil Code. InDichoso d e Ticson v. DeGorost iza,30the Court recognized that there aretwo divergent tendencies in the law on wills, onebeing based on strict construction and the otheron liberal construction. In Dichoso, the Courtnoted thatAbangan v. Abangan,31the basic caseon the liberal construction, is cited with approvalin later decisions of the Court.

In Adeva vda. De Leynez v. Leynez,32thepetitioner, arguing for liberal construction of

applicable laws, enumerated a long line ofcases to support her argument while therespondent, contending that the rule on strictconstruction should apply, also cited a longseries of cases to support his view. The Court,after examining the cases invoked by theparties, held:

x x x It is, of course, not possible to lay down ageneral rule, rigid and inflexible, which would beapplicable to all cases. More than anything else,the facts and circumstances of record are to beconsidered in the application of any given rule. If

the surrounding circumstances point to a regularexecution of the will, and the instrumentappears to have been executed substantially inaccordance with the requirements of the law,the inclination should, in the absence of anysuggestion of bad faith, forgery or fraud, leantowards its admission to probate, although thedocument may suffer from some imperfection oflanguage, or other non-essential defect. x x x.

An attestation clause is made for the purpose ofpreserving, in permanent form, a record of the

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facts attending the execution of the will, so thatin case of failure of the memory of thesubscribing witnesses, or other casualty, theymay still be proved. (Thompson on Wills, 2d ed.,sec. 132.) A will, therefore, should not berejected where its attestation clause serves thepurpose of the law. x x x331a\^/phi1.net

We rule to apply the liberal construction in theprobate of Abadas will. Abadas will clearlyshows four signatures: that of Abada and ofthree other persons. It is reasonable to concludethat there are three witnesses to the will. Thequestion on the number of the witnesses isanswered by an examination of the will itselfand without the need for presentation ofevidence aliunde. The Court explained theextent and limits of the rule on liberalconstruction, thus:

[T]he so-called liberal rule does not offer any

puzzle or difficulty, nor does it open the door toserious consequences. The later decisions dotell us when and where to stop; they draw thedividing line with precision.They do not allowevidence al iunde to fill a void in any part ofthe document or supply missing details thatshould appear in the will itself. l^ vvp h i1 . n e t They onlypermit a probe into the will, an explorationwithin its confines, to ascertain its meaningor to determine the existence or absence ofthe requisite formalities of law. This clear,sharp limitation eliminates uncertainty and ought

to banish any fear of dire results.

34

(Emphasissupplied)

The phrase "en presencia de nosotros" or "inour presence" coupled with the signaturesappearing on the will itself and after theattestation clause could only mean that: (1)

Abada subscribed to and professed before thethree witnesses that the document was his lastwill, and (2) Abada signed the will and the leftmargin of each page of the will in the presenceof these three witnesses.

Finally, Caponong-Noble alleges that theattestation clause does not expressly state thecircumstances that thewitnesses witnessedand signed the will and allits pages in the presence of the testator and ofeach other. This Court has ruled:

Precision of language in the drafting of anattestation clause is desirable. However, it is notimperative that a parrot-like copy of the words ofthe statute be made. It is sufficient if from thelanguage employed it can reasonably be

deduced that the attestation clause fulfills whatthe law expects of it.35

The last part of the attestation clause states "entestimonio de ello, cada uno de nosotros lofirmamos en presencia de nosotros y deltestador." In English, this means "in its witness,every one of us also signed in our presence and

of the testator." This clearly shows that theattesting witnesses witnessed the signing of thewill of the testator, and that each witness signedthe will in the presence of one another and ofthe testator.

WHEREFORE, we AFFIRM the Decision of theCourt of Appeals of 12 January 2001 in CA-G.R.CV No. 47644.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-22595 November 1, 1927

Testate Estate of Joseph G. Brimo, JUANMICIANO, administrator,petitioner-appellee,vs.ANDRE BRIMO,opponent-appellant.

Ross, Lawrence and Selph for appellant.Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by thedeceased Joseph G. Brimo is in question in thiscase.

The judicial administrator of this estatefiled a scheme of partition. Andre Brimo, one ofthe brothers of the deceased, opposed it. Thecourt, however, approved it.

The errors which the oppositor-appellantassigns are:

(1) The approval of said scheme ofpartition; (2) denial of his participation in theinheritance; (3) the denial of the motion forreconsideration of the order approving the

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partition; (4) the approval of the purchase madeby the Pietro Lana of the deceased's businessand the deed of transfer of said business; and(5) the declaration that the Turkish laws areimpertinent to this cause, and the failure not topostpone the approval of the scheme of partitionand the delivery of the deceased's business toPietro Lanza until the receipt of the depositions

requested in reference to the Turkish laws.

The appellant's opposition is based on thefact that the partition in question puts into effectthe provisions of Joseph G. Brimo's will whichare not in accordance with the laws of hisTurkish nationality, for which reason they arevoid as being in violation or article 10 of the CivilCode which, among other things, provides thefollowing:

Nevertheless, legal andtestamentary successions, in respect to

the order of succession as well as to theamount of the successional rights andthe intrinsic validity of their provisions,shall be regulated by the national law ofthe person whose succession is inquestion, whatever may be the nature ofthe property or the country in which itmay be situated.

But the fact is that the oppositor did notprove that said testimentary dispositions are notin accordance with the Turkish laws, inasmuch

as he did not present any evidence showingwhat the Turkish laws are on the matter, and inthe absence of evidence on such laws, they arepresumed to be the same as those of thePhilippines. (Lim and Lim vs. Collector ofCustoms, 36 Phil., 472.)

It has not been proved in theseproceedings what the Turkish laws are. He,himself, acknowledges it when he desires to begiven an opportunity to present evidence on thispoint; so much so that he assigns as an error ofthe court in not having deferred the approval of

the scheme of partition until the receipt ofcertain testimony requested regarding theTurkish laws on the matter.

The refusal to give the oppositor anotheropportunity to prove such laws does notconstitute an error. It is discretionary with thetrial court, and, taking into consideration that theoppositor was granted ample opportunity tointroduce competent evidence, we find noabuse of discretion on the part of the court inthis particular. There is, therefore, no evidence

in the record that the national law of the testatorJoseph G. Brimo was violated in thetestamentary dispositions in question which, notbeing contrary to our laws in force, must becomplied with and executed. lawphil.net

Therefore, the approval of the scheme ofpartition in this respect was not erroneous.

In regard to the first assignment of errorwhich deals with the exclusion of the hereinappellant as a legatee, inasmuch as he is one ofthe persons designated as such in will, it mustbe taken into consideration that such exclusionis based on the last part of the second clause ofthe will, which says:

Second. I like desire to state thatalthough by law, I am a Turkish citizen,this citizenship having been conferredupon me by conquest and not by freechoice, nor by nationality and, on theother hand, having resided for aconsiderable length of time in thePhilippine Islands where I succeeded inacquiring all of the property that I nowpossess, it is my wish that thedistribution of my property andeverything in connection with this, mywill, be made and disposed of inaccordance with the laws in force in thePhilippine islands, requesting all of myrelatives to respect this wish, otherwise,

I annul and cancel beforehand whateverdisposition found in this will favorable tothe person or persons who fail to complywith this request.

The institution of legatees in this will isconditional, and the condition is that theinstituted legatees must respect the testator'swill to distribute his property, not in accordancewith the laws of his nationality, but inaccordance with the laws of the Philippines.

If this condition as it is expressed werelegal and valid, any legatee who fails to complywith it, as the herein oppositor who, by hisattitude in these proceedings has not respectedthe will of the testator, as expressed, isprevented from receiving his legacy.

The fact is, however, that the saidcondition is void, being contrary to law, forarticle 792 of the civil Code provides thefollowing:

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Impossible conditions and thosecontrary to law or good morals shall beconsidered as not imposed and shall notprejudice the heir or legatee in anymanner whatsoever, even should thetestator otherwise provide.

And said condition is contrary to law

because it expressly ignores the testator'snational law when, according to article 10 of thecivil Code above quoted, such national law ofthe testator is the one to govern histestamentary dispositions.

Said condition then, in the light of thelegal provisions above cited, is consideredunwritten, and the institution of legatees in saidwill is unconditional and consequently valid andeffective even as to the herein oppositor.

It results from all this that the secondclause of the will regarding the law which shallgovern it, and to the condition imposed upon thelegatees, is null and void, being contrary to law.

All of the remaining clauses of said willwith all their dispositions and requests areperfectly valid and effective it not appearing thatsaid clauses are contrary to the testator'snational law.

Therefore, the orders appealed from aremodified and it is directed that the distribution of

this estate be made in such a manner as toinclude the herein appellant Andre Brimo as oneof the legatees, and the scheme of partitionsubmitted by the judicial administrator isapproved in all other respects, without anypronouncement as to costs.

So ordered.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS,deceased.PEOPLE'S BANK and TRUSTCOMPANY,executor.MARIA CRISTINA BELLIS and MIRIAMPALMA BELLIS,oppositors-appellants,

vs.EDWARD A. BELLIS, ET AL.,heirs-appellees.

Vicente R. Macasaet and Jose D. Villena foroppositors appellants.Paredes, Poblador, Cruz and Nazareno forheirs-appellees E. A. Bellis, et al.Quijano and Arroyo for heirs-appellees W. S.

Bellis, et al.J. R. Balonkita for appellee People's Bank &Trust Company.Ozaeta, Gibbs and Ozaeta for appellee A. B.

Allsman.

BENGZON, J.P., J .:

This is a direct appeal to Us, upon a questionpurely of law, from an order of the Court of FirstInstance of Manila dated April 30, 1964,approving the project of partition filed by theexecutor in Civil Case No. 37089 therein. 1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen ofthe State of Texas and of the United States." Byhis first wife, Mary E. Mallen, whom he divorced,he had five legitimate children: Edward A. Bellis,George Bellis (who pre-deceased him ininfancy), Henry A. Bellis, Alexander Bellis and

Anna Bellis Allsman; by his second wife, VioletKennedy, who survived him, he had threelegitimate children: Edwin G. Bellis, Walter S.

Bellis and Dorothy Bellis; and finally, he hadthree illegitimate children: Amos Bellis, Jr.,Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed awill in the Philippines, in which he directed thatafter all taxes, obligations, and expenses ofadministration are paid for, his distributableestate should be divided, in trust, in thefollowing order and manner: (a) $240,000.00 tohis first wife, Mary E. Mallen; (b) P120,000.00 tohis three illegitimate children, Amos Bellis, Jr.,

Maria Cristina Bellis, Miriam Palma Bellis, orP40,000.00 each and (c) after the foregoing twoitems have been satisfied, the remainder shallgo to his seven surviving children by his firstand second wives, namely: Edward A. Bellis,Henry A. Bellis, Alexander Bellis and AnnaBellis Allsman, Edwin G. Bellis, Walter S. Bellis,and Dorothy E. Bellis, in equal shares. 1wph1.t

Subsequently, or on July 8, 1958, Amos G.Bellis died a resident of San Antonio, Texas,U.S.A. His will was admitted to probate in the

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Court of First Instance of Manila on September15, 1958.

The People's Bank and Trust Company, asexecutor of the will, paid all the bequests thereinincluding the amount of $240,000.00 in the formof shares of stock to Mary E. Mallen and to thethree (3) illegitimate children, Amos Bellis, Jr.,

Maria Cristina Bellis and Miriam Palma Bellis,various amounts totalling P40,000.00 each insatisfaction of their respective legacies, or atotal of P120,000.00, which it released from timeto time according as the lower court approvedand allowed the various motions or petitionsfiled by the latter three requesting partialadvances on account of their respectivelegacies.

On January 8, 1964, preparatory to closing itsadministration, the executor submitted and filedits "Executor's Final Account, Report of

Administration and Project of Partition" whereinit reported, inter alia, the satisfaction of thelegacy of Mary E. Mallen by the delivery to herof shares of stock amounting to $240,000.00,and the legacies of Amos Bellis, Jr., MariaCristina Bellis and Miriam Palma Bellis in theamount of P40,000.00 each or a total ofP120,000.00. In the project of partition, theexecutor pursuant to the "Twelfth" clause ofthe testator's Last Will and Testament dividedthe residuary estate into seven equal portionsfor the benefit of the testator's seven legitimate

children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis andMiriam Palma Bellis filed their respectiveoppositions to the project of partition on theground that they were deprived of their legitimesas illegitimate children and, therefore,compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no oppositiondespite notice to him, proof of service of whichis evidenced by the registry receipt submitted on

April 27, 1964 by the executor.1

After the parties filed their respectivememoranda and other pertinent pleadings, thelower court, on April 30, 1964, issued an orderoverruling the oppositions and approving theexecutor's final account, report andadministration and project of partition. Relyingupon Art. 16 of the Civil Code, it applied thenational law of the decedent, which in this caseis Texas law, which did not provide for legitimes.

Their respective motions for reconsiderationhaving been denied by the lower court on June11, 1964, oppositors-appellants appealed to thisCourt to raise the issue of which law must applyTexas law or Philippine law.

In this regard, the parties do not submit the caseon, nor even discuss, the doctrine of renvoi,

applied by this Court inAznar v. ChristensenGarcia, L-16749, January 31, 1963. Saiddoctrine is usually pertinent where the decedentis a national of one country, and a domicile ofanother. In the present case, it is not disputedthat the decedent was both a national of Texasand a domicile thereof at the time of hisdeath.2So that even assuming Texas has aconflict of law rule providing that the domiciliarysystem (law of the domicile) should govern, thesame would not result in a reference back(renvoi) to Philippine law, but would still refer toTexas law. Nonetheless, if Texas has a conflicts

rule adopting the situs theory (lex rei sitae)calling for the application of the law of the placewhere the properties are situated, renvoi wouldarise, since the properties here involved arefound in the Philippines. In the absence,however, of proof as to the conflict of law rule ofTexas, it should not be presumed different fromours.3Appellants' position is therefore not restedon the doctrine of renvoi. As stated, they neverinvoked nor even mentioned it in theirarguments. Rather, they argue that their casefalls under the circumstances mentioned in thethird paragraph of Article 17 in relation to Article16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the CivilCode, render applicable the national law of thedecedent, in intestate or testamentarysuccessions, with regard to four items: (a) theorder of succession; (b) the amount ofsuccessional rights; (e) the intrinsic validity ofthe provisions of the will; and (d) the capacity tosucceed. They provide that

ART. 16. Real property as well as

personal property is subject to the law ofthe country where it is situated.

However, intestate and testamentarysuccessions, both with respect to theorder of succession and to the amountof successional rights and to the intrinsicvalidity of testamentary provisions, shallbe regulated by the national law of theperson whose succession is underconsideration, whatever may he thenature of the property and regardless of

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the country wherein said property maybe found.

ART. 1039. Capacity to succeed isgoverned by the law of the nation of thedecedent.

Appellants would however counter that Art. 17,

paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons,their acts or property, and those whichhave for their object public order, publicpolicy and good customs shall not berendered ineffective by laws or

judgments promulgated, or bydeterminations or conventions agreedupon in a foreign country.

prevails as the exception to Art. 16, par. 2 of theCivil Code afore-quoted. This is not correct.Precisely, Congressdeleted the phrase,"notwithstanding the provisions of this and thenext preceding article" when they incorporated

Art. 11 of the old Civil Code as Art. 17 of thenew Civil Code, while reproducing withoutsubstantial change the second paragraph of Art.10 of the old Civil Code as Art. 16 in the new. Itmust have been their purpose to make thesecond paragraph of Art. 16 a specific provisionin itself which must be applied in testate andintestate succession. As further indication of this

legislative intent, Congress added a newprovision, under Art. 1039, which decrees thatcapacity to succeed is to be governed by thenational law of the decedent.

It is therefore evident that whatever public policyor good customs may be involved in our Systemof legitimes, Congress has not intended toextend the same to the succession of foreignnationals. For it has specifically chosen toleave, inter alia, the amount of successionalrights, to the decedent's national law. Specificprovisions must prevail over general ones.

Appellants would also point out that thedecedent executed two wills one to governhis Texas estate and the other his Philippineestate arguing from this that he intendedPhilippine law to govern his Philippine estate.

Assuming that such was the decedent'sintention in executing a separate Philippine will,it would not alter the law, for as this Court ruledin Miciano v. Brimo, 50 Phil. 867, 870, aprovision in a foreigner's will to the effect that

his properties shall be distributed in accordancewith Philippine law and not with his national law,is illegal and void, for his national law cannot beignored in regard to those matters that Article 10 now Article 16 of the Civil Code statessaid national law should govern.

The parties admit that the decedent, Amos G.

Bellis, was a citizen of the State of Texas,U.S.A., and that under the laws of Texas, thereare no forced heirs or legitimes. Accordingly,since the intrinsic validity of the provision of thewill and the amount of successional rights are tobe determined under Texas law, the Philippinelaw on legitimes cannot be applied to thetestacy of Amos G. Bellis.

Wherefore, the order of the probate court ishereby affirmed in toto, with costs againstappellants. So ordered.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATEOF EDWARD E. CHRISTENSEN,DECEASED.ADOLFO C. AZNAR, Executor and LUCY

CHRISTENSEN, Heir of thedeceased,Executor and Heir-appellees,vs.HELEN CHRISTENSEN GARCIA,oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.Leopoldo M. Abellera and Jovito Salonga foroppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court ofFirst Instance of Davao, Hon. Vicente N. Cusi,Jr., presiding, in Special Proceeding No. 622 ofsaid court, dated September 14, 1949,approving among things the final accounts ofthe executor, directing the executor toreimburse Maria Lucy Christensen the amountof P3,600 paid by her to Helen ChristensenGarcia as her legacy, and declaring Maria LucyChristensen entitled to the residue of theproperty to be enjoyed during her lifetime, andin case of death without issue, one-half of said

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residue to be payable to Mrs. Carrie Louise C.Borton, etc., in accordance with the provisionsof the will of the testator Edward E. Christensen.The will was executed in Manila on March 5,1951 and contains the following provisions:

3. I declare ... that I have but ONE (1)child, named MARIA LUCY

CHRISTENSEN (now Mrs. BernardDaney), who was born in the Philippinesabout twenty-eight years ago, and whois now residing at No. 665 RodgerYoung Village, Los Angeles, California,U.S.A.

4. I further declare that I now have noliving ascendants, and no descendantsexcept my above named daughter,MARIA LUCY CHRISTENSEN DANEY.

x x x x x x x x x

7. I give, devise and bequeath untoMARIA HELEN CHRISTENSEN, nowmarried to Eduardo Garcia, abouteighteen years of age and who,notwithstanding the fact that she wasbaptized Christensen, is not in any wayrelated to me, nor has she been at anytime adopted by me, and who, from allinformation I have now resides in Egpit,Digos, Davao, Philippines, the sum ofTHREE THOUSAND SIX HUNDRED

PESOS (P3,600.00), PhilippineCurrency the same to be deposited intrust for the said Maria HelenChristensen with the Davao Branch ofthe Philippine National Bank, and paidto her at the rate of One Hundred Pesos(P100.00), Philippine Currency permonth until the principal thereof as wellas any interest which may have accruedthereon, is exhausted..

x x x x x x x x x

12. I hereby give, devise and bequeath,unto my well-beloved daughter, the saidMARIA LUCY CHRISTENSEN DANEY(Mrs. Bernard Daney), now residing asaforesaid at No. 665 Rodger YoungVillage, Los Angeles, California, U.S.A.,all the income from the rest, remainder,and residue of my property and estate,real, personal and/or mixed, ofwhatsoever kind or character, andwheresoever situated, of which I may be

possessed at my death and which mayhave come to me from any sourcewhatsoever, during her lifetime: ....

It is in accordance with the above-quotedprovisions that the executor in his final accountand project of partition ratified the payment ofonly P3,600 to Helen Christensen Garcia and

proposed that the residue of the estate betransferred to his daughter, Maria LucyChristensen.

Opposition to the approval of the project ofpartition was filed by Helen Christensen Garcia,insofar as it deprives her (Helen) of her legitimeas an acknowledged natural child, she havingbeen declared by Us in G.R. Nos. L-11483-84an acknowledged natural child of the deceasedEdward E. Christensen. The legal grounds ofopposition are (a) that the distribution should begoverned by the laws of the Philippines, and (b)

that said order of distribution is contrary theretoinsofar as it denies to Helen Christensen, one oftwo acknowledged natural children, one-half ofthe estate in full ownership. In amplification ofthe above grounds it was alleged that the lawthat should govern the estate of the deceasedChristensen should not be the internal law ofCalifornia alone, but the entire law thereofbecause several foreign elements are involved,that the forum is the Philippines and even if thecase were decided in California, Section 946 ofthe California Civil Code, which requires that the

domicile of the decedent should apply, shouldbe applicable. It was also alleged that MariaHelen Christensen having been declared anacknowledged natural child of the decedent, sheis deemed for all purposes legitimate from thetime of her birth.

The court below ruled that as Edward E.Christensen was a citizen of the United Statesand of the State of California at the time of hisdeath, the successional rights and intrinsicvalidity of the provisions in his will are to begoverned by the law of California, in accordance

with which a testator has the right to dispose ofhis property in the way he desires, because theright of absolute dominion over his property issacred and inviolable (In re McDaniel's Estate,77 Cal. Appl. 2d 877, 176 P. 2d 952, and In reKaufman, 117 Cal. 286, 49 Pac. 192, cited inpage 179, Record on Appeal). Oppositor MariaHelen Christensen, through counsel, filedvarious motions for reconsideration, but thesewere denied. Hence, this appeal.

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the St. Luke's Hospital in the City ofManila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile ofthe deceased is the Philippines, we arepersuaded by the fact that he was born in NewYork, migrated to California and resided therefor nine years, and since he came to the

Philippines in 1913 he returned to Californiavery rarely and only for short visits (perhaps torelatives), and considering that he appearsnever to have owned or acquired a home orproperties in that state, which would indicatethat he would ultimately abandon the Philippinesand make home in the State of California.

Sec. 16. Residence is a term used withmany shades of meaning from meretemporary presence to the mostpermanent abode. Generally, however,it is used to denote something more

than mere physical presence. (Goodrichon Conflict of Laws, p. 29)

As to his citizenship, however, We find that thecitizenship that he acquired in California whenhe resided in Sacramento, California from 1904to 1913, was never lost by his stay in thePhilippines, for the latter was a territory of theUnited States (not a state) until 1946 and thedeceased appears to have considered himselfas a citizen of California by the fact that whenhe executed his will in 1951 he declared that he

was a citizen of that State; so that he appearsnever to have intended to abandon hisCalifornia citizenship by acquiring another. Thisconclusion is in accordance with the followingprinciple expounded by Goodrich in his Conflictof Laws.

The terms "'residence" and "domicile"might well be taken to mean the samething, a place of permanent abode. Butdomicile, as has been shown, hasacquired a technical meaning. Thus onemay be domiciled in a place where he

has never been. And he may reside in aplace where he has no domicile. Theman with two homes, between which hedivides his time, certainly resides ineach one, while living in it. But if he wenton business which would require hispresence for several weeks or months,he might properly be said to havesufficient connection with the place to becalled a resident. It is clear, however,that, if he treated his settlement ascontinuing only for the particular

business in hand, not giving up hisformer "home," he could not be adomiciled New Yorker. Acquisition of adomicile of choice requires the exerciseof intention as well as physicalpresence. "Residence simply requiresbodily presence of an inhabitant in agiven place, while domicile requires

bodily presence in that place and alsoan intention to make it one's domicile."Residence, however, is a term used withmany shades of meaning, from themerest temporary presence to the mostpermanent abode, and it is not safe toinsist that any one use et the onlyproper one. (Goodrich, p. 29)

The law that governs the validity of histestamentary dispositions is defined in Article 16of the Civil Code of the Philippines, which is asfollows:

ART. 16. Real property as well aspersonal property is subject to the law ofthe country where it is situated.

However, intestate and testamentarysuccessions, both with respect to theorder of succession and to the amountof successional rights and to the intrinsicvalidity of testamentary provisions, shallbe regulated by the national law of theperson whose succession is under

consideration, whatever may be thenature of the property and regardless ofthe country where said property may befound.

The application of this article in the case at barrequires the determination of the meaning of theterm "national law"is used therein.

There is no single American law governing thevalidity of testamentary provisions in the UnitedStates, each state of the Union having its ownprivate law applicable to its citizens only and inforce only within the state. The "national law"indicated in Article 16 of the Civil Code abovequoted can not, therefore, possibly mean orapply to any general American law. So it canrefer to no other than the private law of theState of California.

The next question is: What is the law inCalifornia governing the disposition of personalproperty? The decision of the court below,sustains the contention of the executor-appellee

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that under the California Probate Code, atestator may dispose of his property by will inthe form and manner he desires, citing the caseof Estate of McDaniel, 77 Cal. Appl. 2d 877, 176P. 2d 952. But appellant invokes the provisionsof Article 946 of the Civil Code of California,which is as follows:

If there is no law to the contrary, in theplace where personal property issituated, it is deemed to follow theperson of its owner, and is governed bythe law of his domicile.

The existence of this provision is alleged inappellant's opposition and is not denied. Wehave checked it in the California Civil Code andit is there. Appellee, on the other hand, relies onthe case cited in the decision and testified to bya witness. (Only the case of Kaufman iscorrectly cited.) It is argued on executor's behalf

that as the deceased Christensen was a citizenof the State of California, the internal lawthereof, which is that given in the abovecitedcase, should govern the determination of thevalidity of the testamentary provisions ofChristensen's will, such law being in force in theState of California of which Christensen was acitizen. Appellant, on the other hand, insists that

Article 946 should be applicable, and inaccordance therewith and following the doctrineof therenvoi, the question of the validity of thetestamentary provision in question should be

referred back to the law of the decedent'sdomicile, which is the Philippines.

The theory of doctrine of renvoihas beendefined by various authors, thus:

The problem has been stated in thisway: "When the Conflict of Laws rule ofthe forum refers a jural matter to aforeign law for decision, is the referenceto the purely internal rules of law of theforeign system; i.e., to the totality of theforeign law minus its Conflict of Laws

rules?"

On logic, the solution is not an easyone. The Michigan court chose toaccept the renvoi, that is, applied theConflict of Laws rule of Illinois whichreferred the matter back to Michiganlaw. But once having determined the theConflict of Laws principle is the rulelooked to, it is difficult to see why thereference back should not have been toMichigan Conflict of Laws. This would

have resulted in the "endless chain ofreferences" which has so often beencriticized be legal writers. Theopponents of the renvoi would havelooked merely to the internal law ofIllinois, thus rejecting the renvoi or thereference back. Yet there seems nocompelling logical reason why the

original reference should be the internallaw rather than to the Conflict of Lawsrule. It is true that such a solution avoidsgoing on a merry-go-round, but thosewho have accepted the renvoi theoryavoid this inextricabilis circulasbygetting off at the second reference andat that point applying internal law.Perhaps the opponents of the renvoiarea bit more consistent for they lookalways to internal law as the rule ofreference.

Strangely enough, both the advocatesfor and the objectors to the renvoipleadthat greater uniformity will result fromadoption of their respective views. Andstill more strange is the fact that the onlyway to achieve uniformity in this choice-of-law problem is if in the dispute thetwo states whose laws form the legalbasis of the litigation disagree as towhether the renvoi should be accepted.If both reject, or both accept thedoctrine, the result of the litigation willvary with the choice of the forum. In thecase stated above, had the Michigancourt rejected the renvoi, judgmentwould have been against the woman; ifthe suit had been brought in the Illinoiscourts, and they too rejected the renvoi,

judgment would be for the woman. Thesame result would happen, though thecourts would switch with respect towhich would hold liability, if both courtsaccepted the renvoi.

The Restatement accepts

the renvoitheory in two instances:where the title to land is in question, andwhere the validity of a decree of divorceis challenged. In these cases theConflict of Laws rule of the situs of theland, or the domicile of the parties in thedivorce case, is applied by the forum,but any further reference goes only tothe internal law. Thus, a person's title toland, recognized by the situs, will berecognized by every court; and everydivorce, valid by the domicile of the

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parties, will be valid everywhere.(Goodrich, Conflict of Laws, Sec. 7, pp.13-14.)

X, a citizen of Massachusetts, diesintestate, domiciled in France, leavingmovable property in Massachusetts,England, and France. The question

arises as to how this property is to bedistributed among X's next of kin.

Assume (1) that this question arises in aMassachusetts court. There the rule ofthe conflict of laws as to intestatesuccession to movables calls for anapplication of the law of the deceased'slast domicile. Since by hypothesis X'slast domicile was France, the naturalthing for the Massachusetts court to dowould be to turn to French statute ofdistributions, or whatever corresponds

thereto in French law, and decree adistribution accordingly. An examinationof French law, however, would showthat if a French court were called uponto determine how this property shouldbe distributed, it would refer thedistribution to the national law of thedeceased, thus applying theMassachusetts statute of distributions.So on the surface of things theMassachusetts court has open to italternative course of action: (a) either to

apply the French law is to intestatesuccession, or (b) to resolve itself into aFrench court and apply theMassachusetts statute of distributions,on the assumption that this is what aFrench court would do. If it accepts theso-called renvoidoctrine, it will follow thelatter course, thus applying its own law.

This is one type of renvoi. A jural matteris presented which the conflict-of-lawsrule of the forum refers to a foreign law,the conflict-of-laws rule of which, in turn,

refers the matter back again to the lawof the forum. This is renvoi in thenarrower sense. The German term forthis judicial process is'Ruckverweisung.'" (Harvard LawReview, Vol. 31, pp. 523-571.)

After a decision has been arrived at thata foreign law is to be resorted to asgoverning a particular case, the furtherquestion may arise: Are the rules as tothe conflict of laws contained in such

foreign law also to be resorted to? Thisis a question which, while it has beenconsidered by the courts in but a fewinstances, has been the subject offrequent discussion by textwriters andessayists; and the doctrine involved hasbeen descriptively designated by themas the "Renvoyer" to send back, or the

"Ruchversweisung", or the"Weiterverweisung", since an affirmativeanswer to the question postulated andthe operation of the adoption of theforeign law in toto would in many casesresult in returning the main controversyto be decided according to the law of theforum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrineof renvoi", has been advanced. Thetheory of the doctrine of renvoiis that thecourt of the forum, in determining the

question before it, must take intoaccount the whole law of the other

jurisdiction, but also its rules as toconflict of laws, and then apply the lawto the actual question which the rules ofthe other jurisdiction prescribe. This maybe the law of the forum. The doctrine oftherenvoihas generally been repudiatedby the American authorities. (2 Am. Jur.296)

The scope of the theory of renvoihas also been

defined and the reasons for its application in acountry explained by Prof. Lorenzen in an articlein the Yale Law Journal, Vol. 27, 1917-1918, pp.529-531. The pertinent parts of the article arequoted herein below:

The recognition of the renvoitheoryimplies that the rules of the conflict oflaws are to be understood asincorporating not only the ordinary orinternal law of the foreign state orcountry, but its rules of the conflict oflaws as well. According to this theory

'the law of a country' means the wholeof its law.

x x x x x x x x x

Von Bar presented his views at themeeting of the Institute of InternationalLaw, at Neuchatel, in 1900, in the formof the following theses:

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(1) Every court shall observe the law ofits country as regards the application offoreign laws.

(2) Provided that no express provision tothe contrary exists, the court shallrespect:

(a) The provisions of a foreignlaw which disclaims the right tobind its nationals abroad asregards their personal statute,and desires that said personalstatute shall be determined bythe law of the domicile, or evenby the law of the place wherethe act in question occurred.

(b) The decision of two or moreforeign systems of law, providedit be certain that one of them isnecessarily competent, whichagree in attributing thedetermination of a question tothe same system of law.

x x x x x x x x x

If, for example, the English law directsits judge to distribute the personal estateof an Englishman who has dieddomiciled in Belgium in accordance withthe law of his domicile, he must first

inquire whether the law of Belgiumwould distribute personal property upondeath in accordance with the law ofdomicile, and if he finds that the Belgianlaw would make the distribution inaccordance with the law of nationality that is the English law he mustaccept this reference back to his ownlaw.

We note that Article 946 of the California CivilCode is its conflict of laws rule, while the rule

applied in In re Kaufman, Supra, its internal law.If the law on succession and the conflict of lawsrules of California are to be enforced jointly,each in its own intended and appropriatesphere, the principle cited In re Kaufman shouldapply to citizens living in the State, but Article946 should apply to such of its citizens as arenot domiciled in California but in other

jurisdictions. The rule laid down of resorting tothe law of the domicile in the determination ofmatters with foreign element involved is inaccord with the general principle of American

law that the domiciliary law should govern inmost matters or rights which follow the personof the owner.

When a man dies leaving personalproperty in one or more states, andleaves a will directing the manner ofdistribution of the property, the law of

the state where he was domiciled at thetime of his death will be looked to indeciding legal questions about the will,almost as completely as the law of situsis consulted in questions about thedevise of land. It is logical that, since thedomiciliary rules control devolution ofthe personal estate in case of intestatesuccession, the same rules shoulddetermine the validity of an attemptedtestamentary dispostion of the property.Here, also, it is not that the domiciliaryhas effect beyond the borders of the

domiciliary state. The rules of thedomicile are recognized as controllingby the Conflict of Laws rules at the situsproperty, and the reason for therecognition as in the case of intestatesuccession, is the general convenienceof the doctrine. The New York court hassaid on the point: 'The general principlethat a dispostiton of a personal property,valid at the domicile of the owner, isvalid anywhere, is one of the universalapplication. It had its origin in thatinternational comity which was one ofthe first fruits of civilization, and it thisage, when business intercourse and theprocess of accumulating property takebut little notice of boundary lines, thepractical wisdom and justice of the ruleis more apparent than ever. (Goodrich,Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the CivilCode of the Philippines pointed out asthe national law is the internal law of California.

But as above explained the laws of Californiahave prescribed two sets of laws for its citizens,one for residents therein and another for thosedomiciled in other jurisdictions. Reasondemands that We should enforce the Californiainternal law prescribed for its citizens residingtherein, and enforce the conflict of laws rules forthe citizens domiciled abroad. If we mustenforce the law of California as in comity we arebound to go, as so declared in Article 16 of ourCivil Code, then we must enforce the law ofCalifornia in accordance with the express

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mandate thereof and as above explained, i.e.,apply the internal law for residents therein, andits conflict-of-laws rule for those domiciledabroad.

It is argued on appellees' behalf that the clause"if there is no law to the contrary in the placewhere the property is situated" in Sec. 946 of

the California Civil Code refers to Article 16 ofthe Civil Code of the Philippines and that thelaw to the contrary in the Philippines is theprovision in said Article 16 that the nationallawof the deceased should govern. Thiscontention can not be sustained. As explainedin the various authorities cited above thenational law mentioned in Article 16 of our CivilCode is the law on conflict of laws in theCalifornia Civil Code, i.e., Article 946, whichauthorizes the reference or return of thequestion to the law of the testator's domicile.The conflict of laws rule in California, Article

946, Civil Code, precisely refers back the case,when a decedent is not domiciled in California,to the law of his domicile, the Philippines in thecase at bar. The court of the domicile can notand should not refer the case back to California;such action would leave the issue incapable ofdetermination because the case will then be likea football, tossed back and forth between thetwo states, between the country of which thedecedent was a citizen and the country of hisdomicile. The Philippine court must apply itsown law as directed in the conflict of laws rule ofthe state of the decedent, if the question has tobe decided, especially as the application of theinternal law of California provides no legitime forchildren while the Philippine law, Arts. 887(4)and 894, Civil Code of the Philippines, makesnatural children legally acknowledged forcedheirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson,39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;Miciano vs. Brimo, 50 Phil. 867; BabcockTempleton vs. Rider Babcock, 52 Phil. 130; andGibbs vs. Government, 59 Phil. 293.) cited by

appellees to support the decision can notpossibly apply in the case at bar, for twoimportant reasons, i.e., the subject in each casedoes not appear to be a citizen of a state in theUnited States but with domicile in thePhilippines, and it does not appear in each casethat there exists in the state of which the subjectis a citizen, a law similar to or identical with Art.946 of the California Civil Code.

We therefore find that as the domicile of thedeceased Christensen, a citizen of California, is

the Philippines, the validity of the provisions ofhis will depriving his acknowledged naturalchild, the appellant, should be governed by thePhilippine Law, the domicile, pursuant to Art.946 of the Civil Code of California, not by theinternal law of California..

WHEREFORE, the decision appealed from is

hereby reversed and the case returned to thelower court with instructions that the partition bemade as the Philippine law on successionprovides. Judgment reversed, with costs againstappellees.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

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

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

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seekingto annul the order of the respondent judge of theCourt of First Instance of Manila, BranchXXXVIII, which admitted to and allowed theprobate of the last will and testament of

Adoracion C. Campos, after an ex-partepresentation of evidence by herein privaterespondent.

On January 31, 1977, Adoracion C. Camposdied, leaving her father, petitioner HermogenesCampos and her sisters, private respondentNenita C. Paguia, Remedios C. Lopez andMarieta C. Medina as the surviving heirs. AsHermogenes Campos was the only compulsoryheir, he executed an Affidavit of Adjudicationunder Rule 74, Section I of the Rules of Courtwhereby he adjudicated unto himself theownership of the entire estate of the deceased

Adoracion Campos.

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Eleven months after, on November 25, 1977,Nenita C. Paguia filed a petition for thereprobate of a will of the deceased, AdoracionCampos, which was allegedly executed in theUnited States and for her appointment asadministratrix of the estate of the deceasedtestatrix.

In her petition, Nenita alleged that the testatrixwas an American citizen at the time of her deathand was a permanent resident of 4633 DitmanStreet, Philadelphia, Pennsylvania, U.S.A.; thatthe testatrix died in Manila on January 31, 1977while temporarily residing with her sister at 2167Leveriza, Malate, Manila; that during herlifetime, the testatrix made her last wig andtestament on July 10, 1975, according to thelaws of Pennsylvania, U.S.A., nominatingWilfredo Barzaga of New Jersey as executor;that after the testatrix death, her last will andtestament was presented, probated, allowed,

and registered with the Registry of Wins at theCounty of Philadelphia, U.S.A., that Clement L.McLaughlin, the administrator who wasappointed after Dr. Barzaga had declined andwaived his appointment as executor in favor ofthe former, is also a resident of Philadelphia,U.S.A., and that therefore, there is an urgentneed for the appointment of an administratrix toadminister and eventually distribute theproperties of the estate located in thePhilippines.

On January 11, 1978, an opposition to thereprobate of the will was filed by hereinpetitioner alleging among other things, that hehas every reason to believe that the will inquestion is a forgery; that the intrinsic provisionsof the will are null and void; and that even ifpertinent American laws on intrinsic provisionsare invoked, the same could not apply inasmuchas they would work injustice and injury to him.

On December 1, 1978, however, the petitionerthrough his counsel, Atty. Franco Loyola, filed aMotion to Dismiss Opposition (With Waiver of

Rights or Interests) stating that he "has beenable to verify the veracity thereof (of the will)and now confirms the same to be truly theprobated will of his daughter Adoracion." Hence,anex-partepresentation of evidence for thereprobate of the questioned will was made.

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

At the hearing, it has beensatisfactorily established that

Adoracion C. Campos, in herlifetime, was a citizen of theUnited States of America with apermanent residence at 4633Ditman Street, Philadelphia, PA19124, (Exhibit D) that whenalive, Adoracion C. Camposexecuted a Last Will and

Testament in the county ofPhiladelphia, Pennsylvania,U.S.A., according to the lawsthereat (Exhibits E-3 to E-3-b)that while in temporary sojournin the Philippines, Adoracion C.Campos died in the City ofManila (Exhibit C) leavingproperty both in the Philippinesand in the United States of

America; that the Last Will andTestament of the late AdoracionC. Campos was admitted and

granted probate by the Orphan'sCourt Division of the Court ofCommon Pleas, the probatecourt of the Commonwealth ofPennsylvania, County ofPhiladelphia, U.S.A., and lettersof administration were issued infavor of Clement J. McLaughlinall in accordance with the lawsof the said foreign country onprocedure and allowance of wills(Exhibits E to E-10); and that thepetitioner is not suffering from

any disqualification which wouldrender her unfit as administratrixof the estate in the Philippines ofthe late Adoracion C. Campos.

WHEREFORE, the Last Will andTestament of the late AdoracionC. Campos is hereby admitted toand allowed probate in thePhilippines, and Nenita CamposPaguia is hereby appointed

Administratrix of the estate of

said decedent; let Letters ofAdministration with the Willannexed issue in favor of said

Administratrix upon her filing of abond in the amount of P5,000.00conditioned under the provisionsof Section I, Rule 81 of theRules of Court.

Another manifestation was filed by the petitioneron April 14, 1979, confirming the withdrawal of

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his opposition, acknowledging the same to behis voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed apetition for relief, praying that the order allowingthe will be set aside on the ground that thewithdrawal of his opposition to the same wassecured through fraudulent means. According to

him, the "Motion to Dismiss Opposition" wasinserted among the papers which he signed inconnection with two Deeds of Conditional Saleswhich he executed with the Construction andDevelopment Corporation of the Philippines(CDCP). He also alleged that the lawyer whofiled the withdrawal of the opposition was not hiscounsel-of-record in the special proceedingscase.

The petition for relief was set for hearing but thepetitioner failed to appear. He made severalmotions for postponement until the hearing was

set on May 29, 1980.

On May 18, 1980, petitioner filed another motionentitled "Motion to Vacate and/or Set Aside theOrder of January 10, 1979, and/or dismiss thecase for lack of jurisdiction. In this motion, thenotice of hearing provided:

Please include this motion inyour calendar for hearing onMay 29, 1980 at 8:30 in themorning for submission for

reconsideration and resolution ofthe Honorable Court. Until thisMotion is resolved, may I alsorequest for the future setting ofthe case for hearing on theOppositor's motion to set asidepreviously filed.

The hearing of May 29, 1980 was re-set by thecourt for June 19, 1980. When the case wascalled for hearing on this date, the counsel forpetitioner tried to argue his motion to vacateinstead of adducing evidence in support of thepetition for relief. Thus, the respondent judgeissued an order dismissing the petition for relieffor failure to present evidence in supportthereof. Petitioner filed a motion forreconsideration but the same was denied. In thesame order, respondent judge also denied themotion to vacate for lack of merit. Hence, thispetition.

Meanwhile, on June 6,1982, petitionerHermogenes Campos died and left a will, which,

incidentally has been questioned by therespondent, his children and forced heirs as, onits face, patently null and void, and a fabrication,appointing Polly Cayetano as the executrix ofhis last will and testament. Cayetano, therefore,filed a motion to substitute herself as petitionerin the instant case which was granted by thecourt on September 13, 1982.

A motion to dismiss the petition on the groundthat the rights of the petitioner HermogenesCampos merged upon his death with the rightsof the respondent and her sisters, onlyremaining children and forced heirs was deniedon September 12, 1983.

Petitioner Cayetano persists with the allegationsthat the respondent judge acted without or inexcess of his jurisdiction when:

1) He ruled the petitioner lost hisstanding in court deprived theRight to Notice (sic) upon thefiling of the Motion to Dismissopposition with waiver of rightsor interests against the estate ofdeceased Adoracion C.Campos, thus, paving the wayfor the hearing ex-parteof thepetition for the probate ofdecedent will.

2) He ruled that petitioner can

waive, renounce or repudiate(not made in a public orauthenticated instrument), or byway of a petition presented tothe court but by way of a motionpresented prior to an order forthe distribution of the estate-thelaw especially providing thatrepudiation of an inheritancemust be presented, within 30days after it has issued an orderfor the distribution of the estatein accordance with the rules of

Court.

3) He ruled that the right of aforced heir to his legitime can bedivested by a decree admitting awill to probate in which noprovision is made for the forcedheir in complete disregard ofLaw of Succession

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4) He denied petitioner's petitionfor Relief on the ground that noevidence was adduced tosupport the Petition for Reliefwhen no Notice nor hearing wasset to afford petitioner to provethe merit of his petition adenial of the due process and a

grave abuse of discretionamounting to lack of jurisdiction.

5) He acquired no jurisdictionover the testate case, the factthat the Testator at the time ofdeath was a usual resident ofDasmarias, Cavite,consequently Cavite Court ofFirst Instance has exclusive

jurisdiction over the case (DeBorja vs. Tan, G.R. No. L-7792,July 1955).

The first two issues raised by the petitioner areanchored on the allegation that the respondent

judge acted with grave abuse of discretion whenhe allow