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

In re: Will and Testament of the deceased REVEREND 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 a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at 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 of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court 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 be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator.

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

. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.

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

From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is afatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition isdecided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirsand among the legatees is given solemn expression at the time the will is executed, and in reality,

the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe andfollow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ.,concur.

G.R. No. L-32636 March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.A.W. FLUEMER,petitioner-appellant,vs.ANNIE COUSHING HIX,oppositor-appellee.

C.A. Sobral for appellant.Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM,J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780). It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.) It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact consisted of the recitals in theCATHYwill and the testimony of the petitioner. Also in beginning administration proceedings orginally in the Philippine

Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands.

While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oathsof Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude W.Maxwell as administrator,cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than thePhilippine Islands and no contention that he left any in West Virginia. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant. Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

GR No. L-4113 June 30, 1952

Testament of the late William R. Giberson.LELA G. DALTON,applicant-appellant,vs.SPRING Giberson,opposition-appealed.

The facts are stated in the decision of the Court.Mr.CD Johnston and AP Deen representing the appellant.D.Francisco EF Remotique for appellee.

PAULJ.:

Lela G. Dalton presented 'on February 10, 1949 an application in the Court of First Instance of Cebupidiendo the legalization of a document which, it claims, is holographic will of William R. Giberson, otorgadoen April 29, 1920 in San Francisco, California;that Giberson was a citizen of the State of Illinois, United States, and a resident of Cebu;and died on August 6, 1943 in the concentration camp at the University of Santo Tomas, Manila, Philippines.

Giberson Spring, legitimate son of William R. Giberson, presented an opposition alleging that the will is apocryphal;that does not represent the true will of the deceased Giberson: and has not been otor gado according to the law.

On 1 July 1949, the opponentfiled a mocionpidiendo the dismissal of the request, claiming that, before a country will made in extranjeropueda be legalized in the Philippines, it must be demonstrated that the will had been legalized that country previamenteen according to Article 1 of Rule 78;that the request does not allege that the will had already been legalized in California.

The applicant opposed the motion to dismiss.On June 20, 1950 the judge dismissed the application, stating:... "Existing rules only under our wills Those That Have Been Previously PROVED and allowed in the United States, or any state or territory thereof, or any foreign country, ACCORDING Such to the laws of state, territory, or country, may be allowed, or Recorded filed in the proper court of first instance in the Philippines.... "Against this order the applicant appealed.

The opposition, in support of its theory, maintains that Article 635 of the Code of Civil Procedure was repealed by Rule 78, under Section 13, Article VIII of the Constitution.That Article 635 of the Code of Civil Procedure reads:

The will made outside the Philippines, which may be authenticated and legalized under the laws of the state or country where it was awarded, could be authenticated, legalized and registered in the Philippines, and will have the same efficacy quesi has been granted in accordance with the laws of these Islands.

This article has been applied in the case of Babcock TempletonagainstRider Babcock, 52 Phil. Rep., 134, in which it was stated that the will made in California and could be legalized in that state, can be legalized in the Philippines.In Case against Varela Varela Calderon, 57 Phil. Rep., 291, will drawn up in Paris, France, by the late Dr. Francisco Varela Calderon was legalized because it was a testamentto podiaser legalized according to the laws of France. A person may dispose of its assets to after his death by will.The granting of a testamentoes a legal act that can be done in the Philippines or abroad;if it is granted in a foreign country, you haveto be in accordance with the laws of that country, which is universally adopted rule.

The alien may have to after his death of his property in the Philippines by will and is not forced to grant the Philippines;You can do it in your own country or another, but according to the laws of the country in which it provides.Article 635 of the Code of Civil Procedure, respecting the freedom of the testator to grant his will anywhere, has the will to be legalized in a foreign country in accordance with the laws ofthat country may legalizsarse also in the Philippines.This provision is substantive, creates rights of the beneficiaries of the will: they are assured to legalize Philippines wills otorgadosfuera Islands if they can be legalized in the country in which they were granted, giving them cause of action for pedirjudicialmente meeting last testator's will whatever the place of execution.Sinesa provision would be truncated to test the power.

Court to amend the Code of Civil Procedure, only amended the procedural part, but not the substantive part."The substantive law can not be enmendadapor rules of procedure."(Reyes v Widow of Light*16 Lawyer Journal, 623.) For both, there is still subsisting as the articulo635 substantive law of the Code of Civil Procedure.

And Article 637 reads: "Wills authenticated and legalized in the United States or any state or territory thereof, or a state or paisextranjero accordance with the laws of that state, territory or country may be legalized yarchivados registered in the Court of First Instance of the testator hath provinciaen chattels or property efectados by such wills. "This articulono is in conflict with Article 635;in fact, more than its corollary noes.If a will made in a foreign country can be legalized according to the laws of that country may also be legalized in the Philippines, with greater reason wills and legalizadosen foreign countries according to the laws of these countries may also be legalized in the Philippines.

Article 1 of Rule 78 is nothing but a transplantation of Article 637 of the Code of Civil Procedure.We reproduce the two provisions:

RULE 78 -SECTION 1.Wills outside PROVED Philippines May be allowed here.-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.

SEC.637.Wills PROVED outside islands May be allowed here.-Wills PROVED and allowed in theUnited States, or any State or Territory thereof,or in a foreign state or country, According to the laws of Such State, Territory, or country, may be allowed, filed, and Recorded in the Court of First Instanceof the province in Which the testator has real personal or estate on May Which Such will operate.

The words underlined in the second arrangement are not listed in the first.

Article 1 of Rule 78 can not prevent legalized in the Philippines a will made in a foreign country, if it can be legalized according to the laws of that country, or require to be previously legalized in that country.It is unsustainable, hence the theory of the opposition.

Appealed the order with costs against the respondent is revoked.

G.R. No. L-20234December 23, 1964

PAULA DE LA CERNA, ET AL.,petitioners,vs.MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS,respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.Nicolas Jumapao for respondents.

REYES, J.B.L.,J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the

hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate ofthe Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further,the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case ofMacrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, northe conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policyand sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law.Interest rei publicae ut finis set litium(Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken

with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicatedde novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision inBilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding inMacrohon vs. Saavedra, 51 Phil. 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Testate estate of the late Bernabe Rodriguez. MARTINA ARANIEGO, petitioner-and appellee,

vs.

ANTONIO RODRIGUEZ ET AL., oppositors and appellants.

GR No. 1627-R;July 1, 1948

JUGO, J.:

Martina Araniego filed on July 19, 1946, a petition in the Court of First Instance of Bulacan for the probate of the will of Bernabe Rodriguez who died on July 14, 1946, at Meycawayan, Bulacan. Antonio, Trinidad and Dolores, all surnamed Rodriguez, brother and nieces, respectively, of the deceased and the heirs ofFrancisco Javier Rodriguez, another brother of the deceased, filed an opposition to said petition, alleging that the will was not executed and witnessed in accordance with law; that the testator had no mental capacity to execute the will; that it was obtained by means of undue pressure and influence; and that the said will was not the will of the testator. After trial the court issued an order admitting to probate as the last will and testament of the deceased Bernabe Rodriguez the document marked as Exhibit C (C-1, translation into English), and appointing Martina Araniego administratrix upon the filing of a bond in the sum of ?2,000. From said order the oppositors appealed.

In the reply-memorandum of the oppositors-appellants dated February 22, 1948, the appellants alleged as an additional ground of opposition that the will of the deceased Bernabe Rodriguez is void for the reason that in said will, Exhibit C, the deceased instituted his wife, the petitioner Martina Araniego, his universal heir and the latter, on the other hand, in her will, Exhibit D, declared Bernabe Rodriguez her universal heir; that is, they were reciprocal beneficiaries in the two wills, citing article 669 of the Civil Code which says:

"Two or more persons cannot make a will conjointly or in the same instr-iment, either for their reciprocal benefit or for the benefit of a third person."

The Spanish text of said article is as follows:

"ART. 669. No podran testar dos o mas personas mancomunadamente, o en un mismo instrumento, ya lo hagan en provecho reciproco, ya en beneficio de un tercero."

It will be noted that the law prohibits two or more persons to make a will conjointly or mancomunadamente or in the same instrument. The wills in this case are not

conjoint but are different instruments; consequently, the above provisions do not apply to them. This is clearly explained by Q. Mucius Scaevola in his Codigo Civil, Vol. 12, pp. 187-188, and by Manresa in Vol. 5, pp. 394-395, 5th edition. No further remark is necessary on our part.

On July 27, 1942, BernabQ Rodriguez executed the document Exhibit C in Tagalog (Exhibit C-1, translation into English), a language which he knew, as his last will and testament, composed of only one page, which was read before the testator and the witnesses by Atty. Teofilo Abejo, upon the request of the testator and Martina Araniego, and signed by the witnesses in the presence of the testator and of each other. The name of the testator was written in his presence and in that of the other witnesses by the witness Teodulo Iniguez by the express direction of the testator, for the reason that the latter was blind and could not sign himself.

The appellants contend that Teodulo Iniguez wrote the name of the testator without being requested to do so by the latter. Testifying on this point, Teodulo Iniguez said:

"P. Tambien aparece en el documento Exhibit C que la firma que se lee fernabe Rodriguez esta seguida con otra firma de Teodulo Iniguez. Puede usted decir ]as circunstancias bajo las cuales se estampo esta firma de Bernabe Rodri uez? "R. Yo estampd la firma que se lee Bernabe Rodriguez, a peticion del difunto.

"P. Sabia usted la razon por que el difunto le pidio a usted que usted estampara su firma en ese documento?-"R. Porque el difunto no padia ver, estaba ciego." (Pp. 7-8, T. S. N. Trial of Sept. 27, 1946. )

In the cross-examination of Iniguez he said that he did not remember the conversation that took place or the words that were uttered during the signing of the will. It is not strange considering that the will was executed on July 27, 1942 and the witness testified on October 18, 1946, or more than four years later. It does not contradict his testimony to the effect that he was requested by the testator to sign the latter's name. A man may remember the substance of what he is told but not the words used.

In the cross-examination of Rosendo Daez, he stated that there was no conversation during the occasion of the signing of the document, Exhibit C. The word "conversation" means an exchange of words or remarks between two or more persons. There was no necessity for any conversation just for the signing of a will. To direct a person to do something is not conversation. Webster's Dictionary gives the pertinent meaning of "conversation" and "converse" as follows:

"Conversation-Coloquial discourse; oral interchange of sentiments or observations; also, an instance of this; talk; colloquy; as Samuel Johnson's conversation.

"Converse-To engage in familiar colloquy; to interchange thoughts and opinions in speech; ttalk, especially in an intelligent or sustained manner; to communicate.

The appellant's brief quotes the following testimoi of Daez on cross-examination:

"Q. Please refresh your memory, from the time this document Exhibit C was read up to the time the signing was finished, was there any conversation had between and among any of the persons present?-A. There was none.

"Q. From the time that document Exh. C was read up to the time the signing thereof was finished, you mean to say there was no conversation at all among or between any of the persons present?A. After I signed I left.

"Q. Yes, sir, but before you left and beginning from the time this Exhibit C was read, did you remember if there was any conversation between and among the parties present?-A. There was none. (fls. 21-23, id.)

"Q. Not a word was spoken between the parties? A. I have not heard anybody." (Page Z, appellants' brief.)

It would seem from the last answer that no word at all was spoken by anybody. This is very, unlikely, because six persons cannot meet in a place without anyone uttering some words unless they were all dumb. What the witness must have meant is that he d ' not hear any conversation or exchange of remarks. It, should be noted that the answer of the witness "I have not heard anybody" does not come immediately after the question "Not a word spoken between the parties?", according to the original transcription of the stenographic notes. Between said question and answer there was a great deal of discussion between the attorneys, and finally the court ordered the witness to answer. Then the witness said "I have not heard anybody" which might have referred to the conversation. The original record of the transcription is as follows:

"Q. Yes, sir, but before you left and beginning from the tine this Exhibit C was read, did you remember if there was any conversation between and among the parties present?

Sr. Osorio

Nos oponemos a la pregunta por falta de base. Hasta ahora no hay prueba, ni se ha leido, si quien ha leido el testamento antes de firmar para continuar con la preguntas que despues de leido el testamento cuantos minutos ha transcurrido para otorgar el testamento.

Sr. Bustos:

Sr. Juez, el testigo dice que ha comprendido el contenido del documento porque cuando se leyo yolo entendi. De modo que hay prueba de que se leyo el documento. Ahora desde el momento que se leyo el docuniento hasta el nionento de firmar si ha habido conversation entre ]as partes presentes es lo que quiero saber. Juzgado: Conteste. "A. There was none. "Q. Not a word was spoken between the parties? Sr. Osorio: Nos oponemos a la pregunta Mr. Bustos: I withdraw the question. Mr. Bustos: "Q. Are you sure of that answer of yours, Mr. Daez? Sr. Osorio: La misma objecion. Juzgado: Conteste. "A. I have not heard anybody." (pp. 22-23, T S. N., Trial of Oct. 18, 1946)

It is also contended by the oppositors that it was Martina Araniego who asked Iniguez to sign the name of Bernabe Rodriguez on Exhibit C and her name on Exhibit D, her will. If Martina asked Iniguez to sign both wills, that does not preclude the fact that the testator also requested Iniguez to sign his will.

The appellants allege that undue pressure and influence was exerted on the testator by Martina to induce him to make the will. Theevidence of the c ipositors consists in that Bernabe Rodriguez and Martina Araniego attended to the purchasers in their sari-sari store; that the clothes of Bernabe were very dirty and his hair was uncut; that Bernabe sold the articles which were near himat the table of the store the location of which he knew by the sense of touch ; that Martina did not allow him change his clothes although they were dirty; and that Bernabe attended to the purchasers in their store by selling the articles which were near at hand, but once when he made a mistake by selling the wrong kind of sugar, lie was severely scolded by Martina and he very meekly retired to a corner, without saying anything. Does this imply undue pressure and influence? It is rather the contrary, because if Martina neglected or mistreated him, she would have had less hope of being the beneficiary. If she wanted to exert influence, she would have treated him well to obtain his good will. There may have been quarrels between the two spouses regarding small matters in the household which may have been overheard by people outside, but that does not mean that the spouses were on bad terms with each other. On the other hand, it was Martina who took care of the testator

and none of the relatives seem to have taken any interest in him, so far as the record discloses. It was natural, therefore, for him to favor his wife, who was taking care of him rather than other people who did not remember him at all.

There is no specific evidence that Martina or anybody in her behalf had exerted pressure or influence of any kind on the testator to induce him to make the will.

As to the mental capacity of the testator, we have the testimony of Dr. Teodulo Iniguez and other witnesses that the testator was sufficiently sound in mind to execute a will. Disease or physical weakness alone does not effect the mental capacity of a testator, unless it is of such a nature as to render him incapable of knowing what he is doing. This has been held in numerous decisions of the Supreme Court, one of them being that of Torres et al., vs. Lopez (48 Phil., 772, 773), in which it was held that:

"1. ID.; ID.; TESTS OF CAPACITY.--Neither old age, physical infirmities feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. The nature and rationality of the will is of some practical utility in determining capacity. Each case rests on its own facts and must be decided by its own facts.

"4. ID.; ID.; EVIDENCE.-On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determining the question. The testimony of subscribing witnesses to a will concerningthe testator's mental condition is entitled to great weight where they are truthful and intelligent. The evidence of those present at the execution of the will and of the attending physician is also to be relied upon.

In view of the foregoing, the order appealed from admitting to probate the document, Exhibit C, as the last will and testament of the deceased Bernabe Rordiguez is hereby affirmed, with costs against the appellants. It is so ordered.

De la Rosa and Paredes, JJ., concur.

Judgment affirmed.

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

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the

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

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

LABRADOR,J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor, directing the executor toreimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of 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. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

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

x x x x x x x x x

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to EduardoGarcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted..

x x x x x x x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, 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, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: .... It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the projectof partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. Itwas also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:

I

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TOTHE PHILIPPINE LAWS.

V

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed thePhilippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in questionherein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared

that he was a citizen of that State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he might properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in agiven place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows: ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

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 where said property may be found.

The application of this article inthe case at bar requires the determination of the meaning of the term"national law"is used therein.

There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The decision of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of therenvoi, the question of thevalidity of the testamentary provision in question should be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus: The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have accepted therenvoitheory avoid thisinextricabilis circulasby getting off at the second reference and at that point applying internal law. Perhaps the opponents of therenvoiare a bit more consistent for they look always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to therenvoiplead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether therenvoishould be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected therenvoi, judgment would have been against the woman; if the suit had been brought in the Illinois courts, and they too rejected therenvoi, judgment would be for the woman. The same result would happen, though the courts would switch with respect to which would hold liability, if both courts accepted therenvoi. The Restatement accepts therenvoitheory intwo instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflictof Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed among X's next of kin. Assume(1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this property should be distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-calledrenvoidoctrine, it will follow the latter course, thus applying its own law.

This is one type ofrenvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a question which, while it has beenconsidered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and essayists; and the doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the"Weiterverweisung", since an affirmative answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.) Another theory, known as the "doctrine ofrenvoi", has been advanced. The theory of the doctrine ofrenvoiis that the court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoihas generally been repudiated by the American authorities. (2 Am. Jur. 296) The scope of the theory ofrenvoihas also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein below:

The recognition of therenvoitheory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law.

x x x x x x x x x

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same system of law.

x x x x x x x x x

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of nationality —that is the English law —he must accept this reference back to his own law.

We note that Article 946 of the California Civil Code 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 laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principlecited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property take but little notice of boundarylines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as thenational lawis the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal law prescribed for its citizens residing

therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then wemust enforce the law of California in accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that thenational lawof the deceased should govern. This contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question 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 the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs 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; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Codeof California, not by the internal law of California.. WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court. Judgment reversed, with costs against appellees.

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

TESTATE ESTATE OF AMOS G. BELLIS, deceased.PEOPLE'S BANK and TRUST COMPANY,executor.MARIA CRISTINA BELLIS and MIRIAM PALMA

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

BENGZON, J.P.,J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E.Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët

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 Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form ofshares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported,inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares ofstock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor —pursuant to the "Twelfth" clause of the testator's Last Will and Testament —divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not providefor legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply —Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court inAznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicileof another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances

mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —

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

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 he 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.

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 which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

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,

theamountof successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills —one to govern his Texas estate and the other his Philippine estate —arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled inMiciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law,is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 —now Article 16 —of the Civil Code states said 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, 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.

Wherefore, the order of the probate court is hereby affirmedin toto, with costs against appellants. So ordered.

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.

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 aforgery; 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, anex-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 establishedthat 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 sufferingfrom 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 ofthe 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 hearingex-parteof 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 whichno 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 manifestationwherein 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 willex-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 willappeared 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 forrelief. 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.