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[G.R. No. 22595. November 1, 1924] "Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator v.

ANDRE BRIMO,

1. FOREIGN LAWS; PRESUMPTION. — In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the same as those of the Philippines. (Lim and Lim v. Collector of Customs, 36 Phil., 472.) 2. POSTPONEMENT OF PROCEEDING; DISCRETION. — It is discretionary on the part of the court to postpone or not to postpone a particular proceeding in a case, and when the person applying for it has already been given ample opportunity to present the evidence that he wishes to introduce, the court commits no abuse of discretion in denying it. 3. SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO LAW; NULLITY OF. — If the condition imposed upon the legatee is that he respect the testator’s order that his property be distributed in accordance with the laws of the Philippines and not in accordance with the laws of his nation, said condition is illegal, because, according to article 10 of the Civil Code, said laws govern his testamentary disposition, and, being illegal, shall be considered unwritten, thus making the institution unconditional. The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.
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by his attitude in these proceedings has not respected the will of the testator. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee. I am a Turkish citizen. having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess. be made and disposed of in accordance with the laws in force in the Philippine islands. the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees. requesting all of my relatives to respect this wish. inasmuch as he is one of the persons designated as such in will. Therefore. If this condition as it is expressed were legal and valid. and to the condition imposed upon the legatees. I like desire to state that although by law. Andre Brimo. on the other hand. but in accordance with the laws of the Philippines. ISSUE: Whether Turkish law or Philippine law will be the basis on the distribution of Joseph Brimo’s estates. is prevented from receiving his legacy. this citizenship having been conferred upon me by conquest and not by free choice. one of the brothers of the deceased (Joseph Brimo) opposed Miciano’s participation in the inheritance. in the light of the legal provisions above cited. judicial administrator of the estate in question. which says: Second. without any pronouncement as to costs. I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. otherwise. and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. not in accordance with the laws of his nationality. such national law of the testator is the one to govern his testamentary dispositions. any legatee who fails to comply with it. and the scheme of partition submitted by the judicial administrator is approved in all other respects. And said condition is contrary to law because it expressly ignores the testator's national law when. being contrary to law. however. according to article 10 of the civil Code above quoted. is null and void. The fact is. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. the approval of the scheme of partition in this respect was not erroneous. Said condition then.Therefore. as the herein oppositor who. my will. and the condition is that the instituted legatees must respect the testator's will to distribute his property. is considered unwritten. The institution of legatees in this will is conditional. that the said condition is void. nor by nationality and. as expressed. FACTS: Juan Miciano. it must be taken into consideration that such exclusion is based on the last part of the second clause of the will. even should the testator otherwise provide. for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever. being contrary to law. It results from all this that the second clause of the will regarding the law which shall govern it. it is my wish that the distribution of my property and everything in connection with this. So ordered. . Joseph Brimo is a Turkish citizen. filed a scheme of partition.

1952. he had three illegitimate children: Amos Bellis.. Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40. Bellis. Bellis executed a will in the Philippines. in equal shares. Jr. Jr. and the legacies of Amos Bellis. or a total of P120.00 each in satisfaction of their respective legacies. OPPOSITORS-APPELLANTS. Report of Administration and Project of Partition" wherein it reported. in trust.. compulsory heirs of the deceased. The People's Bank and Trust Company. 1964. U. as executor of the will. Maria Cristina Bellis. EXECUTOR MARIA CRISTINA BELLIS AND MIRIAM PALMA BELLIS. Mallen. by his second wife. Amos Bellis. Henry A. HEIRS-APPELLEES.000. Jr. Maria Cristina Bellis and Miriam Palma Bellis. Bellis.00 each and (c) after the foregoing.000. two items have been satisfied. 1958. and expenses of administration are paid for. Alexander Bellis and Anna Bellis Allsman.000. Texas.00 to his first wife. 1964. L-23678. On January 17. The facts of the case are as follows: Amos G. upon a question purely of law. Walter S. 37089 therein.divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.000. and Miriam Palma Bellis. was "a citizen of the State of Texas and of the United States. Bellis. who survived him.00. whom he divorced. Bellis and Dorothy Bellis.00. On January 8. 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. June 06. Bellis.S.A. the remainder shall go to his seven surviving children by his first and second wives. BELLIS. . Bellis.R. from an order of the Court of First Instance of Manila dated April 30... or P40.00 in the form of shares of stock to Mary E. Walter S. 1967 ] TESTATE ESTATE OF AMOS G. or on July 8.00 each or a total of P120. Bellis. His will was admitted to probate in the Court of First Instance of Manila on September 15. EDWARD A. ET AL. In the project of partition. Henry A. Subsequently. Amos Bellis. Mallen and to the three (3) illegitimate children. George Bellis (who predeceased him in infancy). Bellis died.pursuant to the "Twelfth" clause of the testator's Last Will and Testament . Mallen by the delivery to her of shares of stock amounting to $240." By his first wife. inter alia.000. Bellis. Amos G. the executor .000. On August 5. paid all the bequests therein including the amount of $240. approving the project of partition filed by the executor in Civil Case No. Bellis. preparatory to closing its administration.00 to his three illegitimate children.. obligations. Mary E. his distributable estate should be divided.G.000. he had five legitimate children: Edward A.000. the satisfaction of the legacy of Mary E. various amounts totalling P40. 1958. Maria Cristina Bellis and Miriam Palma Bellis. 1964. (b) P120. and Dorothy E. namely: Edward A. DECEASED PEOPLE'S BANK& TRUST COMPANY. a resident of San Antonio. Mallen. in which he directed that after all taxes. Mary E. No.00. This is a direct appeal to Us. 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. BELLIS. Edwin G. he had three legitimate children: Edwin G. Alexander Bellis. Bellis. therefore. Amos G. and finally. Jr.000. the executor submitted and filed its "Executor's Final Account. and Anna Bellis Allsman. Violet Kennedy. VS. born in Texas. in the following order and manner: (a) $240.

16 of the Civil Code. paragraph three.Amos Bellis. 1964. it should not be presumed different from ours. which in this case is Texas law. Capacity to succeed is governed by the law of the nation of the decedent. applied by this Court in Aznar v. Rather. and a domicile of another. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions. interposed no opposition despite notice to him. stating that - . nor even discuss. par. In this regard. Article 16. intestate and testamentary successions. since the properties here involved are found in the Philippines. the same would not result in a reference back (renvoi) to Philippine law. Jr. the lower court. however. 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. As stated. with regard to four items: (a) the order of succession. 1039 of the Civil Code. whatever may be the nature of the property and regardless of the country wherein said property may be found. (b) the amount of successional rights. it applied the national law of the decedent. 1039. Real property as well as personal property is subject to the law of the country where it is situated. 17. report and administration and project of partition. In the present case." Appellants would however counter that Art. it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. Said doctrine is usually pertinent where the decedent is a national of one country. (c) the intrinsic validity of the provisions of the will. issued an order overruling the oppositions and approving the executor's final account. oppositors-appellants appealed to this Court to raise the issue of which law must apply . 1964 by the executor[1] After the parties filed their respective memoranda and other pertinent pleadings. and (d) the capacity to succeed. 1964. 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. 2. the doctrine of renvoi. on April 30. L-16749. 16. they never invoked nor even mentioned it in their arguments. Their respective motions for reconsideration having been denied by the lower court on June 11. Christensen Garcia. 1963. In the absence. shall be regulated by the national law of the person whose succession is under consideration. proof of service of which is evidenced by the registry receipt submitted on April 27. They provide that "Art. and Art.[2] So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern. which did not provide for legitimes.[3] Appellants' position is therefore not rested on the doctrine of renvoi. Nonetheless. of proof as to the conflict of law rule of Texas. January 31.Texas law or Philippine law. renvoi would arise. "However. Relying upon Art. but would still refer to Texas law. of the Civil Code. the parties do not submit the case on. render applicable the national law of the decedent. in intestate or testamentary successions." "Art.

Bellis vs Bellis. For it has specifically chosen to leave. U. was a citizen of the State of Texas. there are no legitimes. Bellis.of the Civil Code states said national law should govern. if Philippine law were to be applied. 2 of the Civil Code afore-quoted. HELD: The Supreme Court held that the said children are not entitled to their legitimes under the Texas Law. Accordingly. he made two wills. the Philippine law on legitimes cannot be applied to the testacy of Amos G. By his first wife whom he divorced he had five legitimate children. 10 of the old Civil Code as Art. or by determinations or conventions agreed upon in a foreign country. 870. and of the United States. 1039. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes. to the decedent's national law. .. The parties admit that the decedent.now Article 16 . 867. par. it would not alter the law. 16 a specific provision in itself which must be applied in testate and intestate successions. WHEREFORE. inter alia. 16. for as this Court ruled in the Miciano v. “notwithstanding the provisions of this and the next preceding article' when they incorporated Art. Amos G. Precisely.arguing from this that he intended Philippine law to govern his Philippine estate. 20 scra 358 Amos Bellis was a citizen of the State of Texas. being the national law of the deceased. for his national law cannot be ignored in regard to those matters that Article 10 . one disposing of his Texas properties and the other disposing his Philippine properties. 16 in the new. under Art. since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law.A. Specific provisions must prevail over general ones. Assuming that such was the decedent's intention in executing a separate Philippine will. 17 of the new Civil Code. and three illegitimate children. It must have been their purpose to make the second paragraph of Art."Prohibitive laws concerning persons." prevails as the exception to Art.one to govern his Texas estate and the other his Philippine estate . As further indication of this legislative intent. Congress deleted the phrase. 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. his illegitimate children were not given anything. there are no forced heirs or legitimes. The illegitimate children opposed the will on the ground that they have been deprived of their legitimes to which they should be entitled. Before he died. while reproducing without substantial change the second paragraph of Art. Congress added a new provision. the order of the probate court is hereby affirmed in toto. with costs against appellants. 11 of the old Civil Code as Art. Appellants would also point out that the decedent executed two wills . Bellis. public policy and good customs shall not be rendered ineffective by laws or judgments promulgated. who survived him. Congress has not intended to extend the same to the succession of foreign nationals. which decrees that capacity to succeed is to be governed by the national law of the decedent.S. 50 Phil. is illegal and void. he had three legitimate children. and those which have for their object public order. Brimo. ISSUE: Whether or not the national law of the deceased should determine the successional rights of the illegitimate children. by his second wife. In both wills. This is not correct. and that under the laws of Texas. their acts or property. the amount of successional rights.

were running a business in . Mr. It appears that Jennie Rider Babcock had spent her married life in the State of Massachusetts. son and son-inlaw. at the time the will was made. W. and the question before us ultimately resolves itself into a contention over the point whether the testatrix had ever acquired a legal domicile in the State of California and whether. is written wholly in the handwriting of the deceased and bears her proper signature. R. Templeton. whether the testatrix. It was found among the effects of the deceased shortly after her death. The purport of the paper is to the effect that the writer leaves her stock and money to her three grandchildren. Constance Babcock Templeton. until in 1917. and son. in San Francisco. The instrument therefore is not offered for probate under section 618 and related provisions of the Code of Civil Procedure but under section 636. and that such domicile was never lost. deceased. of the testatrix. personal effects and money. had the status of a citizen of the State of California. when she joined the family of her daughter. W. This paper bears date of May 26. The sole question in controversy therefore now is. When found. 28328. the citizenship of a person born in the United States. Beatrice Babcock Templeton. it was contained in an envelope indorsed with the name of her daughter. R. Babcock and G. as well as her jewelry and personal effects "for their support until the youngest is of age" The aforesaid instrument is admittedly of a testamentary character. Babcock. which authorizes probate by our courts of a will made within the Philippine Islands by a citizen or subject of another state or country. or domicile. jr. her husband having died in 1908. under the first paragraph of the Fourteenth Amendment to the Constitution of the United States. APPELLANT. with reference to the post mortem disposition of all her property. During these years W.R. but. Douglas Templeton. VS. Templeton. WILLIAM RIDER BABCOCK. Babcock. B. contends that the testatrix acquired a legal domicile in the State of California by residence therein over two periods of time between 1917 and 1923. she removed a year later to Manila where she lived with her son. and which might be proved under the law of such state or country. when such will is executed in accordance with the law of the state or country of which the testator is a citizen or subject. though temporarily residing in Manila at the time of her death. she may not have lost it as a result of her removal from that state. but it is not executed as a will under the provisions of law generally governing the execution of the wills made in the Philippine Islands. respectively. PETITIONER. supposing such domicile to have been acquired. William Rider Babcock. 1926. and the parties have agreed that this paper could be proved in the State of California as the holographic will of the deceased. Templeton. the brother of the proponent. Mrs.. or that. mother of the three children who are principal beneficiaries of the will. The proponent of the will. Mrs. Templeton. but the writer further states that all interest and dividends are to be given to her only daughter. as required by section 636 of our Code of Civil Procedure. consisting of corporate stock. 1926. and Billy Babcock Templeton. as was the testatrix in this case. such domicile had been lost under the conditions presently to be discussed. G. The petition in this case was filed in the Court of First Instance of Manila on September 8. is dependent upon the place of residence. California. 1928 ] TEMPLETON. B. R. resists the probate of the will on the ground that the testatrix had never acquired a legal domicile in the State of California. bearing the surname Templeton. It is alleged in the petition that the testatrix was at the time of her death a resident of the State of California. No. jewelry. But. if she had. D. by Beatrice Babcock Templeton to secure probate of a paper writing purporting to express the wishes of Jennie Rider Babcock. Appeal from an order of the Court of First Instance of Manila admitting to probate the holographic will of Jennie Rider Babcock. Mrs. G. 1926. which occurred on September 3. namely. D.[ G. October 02.

During this stay in Manila she occupied an apartment in the house of her son. where she remained until August. decided to close its office in San Francisco and to open a branch in New York City. it appears in evidence that only a short time before her death in Manila she was acquiring a few pieces of Spanish furniture to take back with her to California. sufficiently explains why she claimed to be a resident of Manila in that declaration without making any conclusive commitment as to the place of her domicile in law. 1923." it being insisted that this is an admission on her part tending to show the acquisition by her of a domicile in New York State. This made it necessary for G. As a branch office had been opened in San Francisco requiring the presence of an officer of the company. but she suggested to friends here. taking part in a parade advertising a cause in which she was interested. that a desire to economize the cost of living may have had a part in her course.. made on the same voyage before disembarking at Manila. who gathered her personal effects together and accompanied them to New York. Of some importance. upon arriving in San Francisco. D. leaving behind in the care of friends three pieces of furniture to which she was especially attached and which she perhaps thought she might use later in California. after arriving. The impression that conditions in New York made upon her may be gauged by a statement subsequently made by her to one of her friends in Manila. since the trial court deduced from her acts and statements the conclusion that she had acquired a domicile in California. in which she stated that she was a resident of Manila. She then returned to San Francisco and lived with the Templetons until May. the testatrix returned to Manila in July.Manila. and of course when she told the ship's official that she was from New York City. "Deliver me from living in New York. Among the features of importance which characterize the incident we note the following: First. thirdly. the testatrix established herself as a practitioner in Christian Science. Not long thereafter. in the Passenger Manifest of the vessel upon which she came to Manila. secondly. The Passenger Manifest gave the passenger no choice about indicating whether New York was the place of last residence or the place of last permanent residence. In the year 1923. Templeton to remove with his family to New York State. The sojourn of the testatrix in New York was apparently not congenial. Babcock & Templeton. Indeed. Here the testatrix occupied part of the apartment which the Templetons had taken. Upon arriving in New York State. without any apparent intention of removing from the state. the name of this place necessarily had to go down in the column mentioned. Papers of this character are not commonly written with legal precision. she caused New York City to be entered opposite her name in the column indicating "Last Permanent Residence. Templeton took up his abode in San Francisco for the purpose of managing the business of said branch. and she voted in at least one general election that occurred in that state. had acquired stock in the company and had no other independent source of income than the dividends derived therefrom. arriving at this place in January. 1918. Templeton. since. This step on the part of the Templetons determined the course of the testatrix. after a few months of experience in that city. with Babcock as president of the company and Templeton as its vice-president." What really brought her back to the Philippine Islands. her sonin-law. she returned to Manila. she referred to California as her home state and expressed her intention of returning there and building a home in which to live. and the circumstance that she had lived many years in Manila and was coming back to this city. and in many conversations thereafter with intimate friends. a cult to which she was attached. in which she . is not certain. near New York City. We consider this circumstance of no probative force in connection with the issues of this lawsuit. 1920. the character and incidents of this second sojourn in San Francisco constitute the most important fact in the case. As little importance is to be attached to her Baggage Declaration and Entry. From a legal point of view. apart from her dislike to tie environment in New York. the testatrix announced herself again in the Christian Science Journal as a practitioner of Christian Science in White Plains. owned a home in San Francisco in which he lived. are the numerous conversations. the Templetons established themselves in White Plains. after her return to Manila in 1924. which had been incorporated under the style of Babcock & Templeton. fourthly. as throwing light upon the state of her mind towards California and the intention with which she removed from that state. she formed an attachment for California. but she appears to have supplied the furniture necessary for her own use. it may be noted. He accordingly sold his home in San Francisco and went to live in New York. Inc. After remaining with the Templetons in San Francisco for several months.. A circumstance to which importance is attached by the appellant is that. The testatrix. 1924. Inc. she engaged in political activities.

It is evident from the proof that the removal of the testatrix from California to New York did not proceed from her volition but resulted from circumstances over which she had no primary control. and what we consider the more critical question is whether or not the domicile thus acquired was subsequently lost by removal from said state. yet she was a resident of the Philippine Islands at the time of her death. upon removal to New York. 156). Though not of course conclusive of acquisition of domicile. and she appears to have inherited some property from a sister who had been living in New York and who died before the return of the testatrix to the Philippine Islands. Again. and in no other act of his life does the citizen identify his interests with the state in which he lives more than in the act of voting. a person transferring his domicile from one state of the American Union to another loses his domicile in the state of his earlier abode upon acquiring a domicile. her will should not be admitted to probate as the will of a citizen of another state. may have decisive weight. which. in the state of his new abode. is in conformity with the evidence. her motive being found in her desire to be with her daughter and grandchildren. On the contrary. As between these two states. As was pointed out by this court in In Re Estate of Johnson (39 Phil.. this California domicile has not been supplanted by a later domicile acquired in New York. . On the contrary her short stay there and her repeated statements made thereafter show that she could not possibly have had any intention of making that state a place of permanent abode. 39 Phil. Massachusetts. Her will is therefore provable under section 636 of the Code of Civil Procedure as the will of a citizen of another state or country. with as good right as the State of California. In the case before us there are no declarations of the testatrix in evidence which would tend to show that. Furthermore. according to the evidence in this record. she had any intention of acquiring a legal domicile in that state. she at no time had any intention of residing here permanently. and there is no other state whose citizenship she can claim. which state of the American Union has the best claim to her citizenship. and we must decide between California and New York. voting in a place is an important circumstance and.revealed an intention of returning to live in California. to the effect that acquired domicile had not been lost. a question. even supposing that the testatrix had not acquired a domicile in New York. as we have already seen. The acquisition of the new legal domicile extinguishes the old. we are of the opinion that the conclusion of the trial court. for the purposes of admitting this will to probate. we are of the opinion that the trial court committed no error in attaching importance to the circumstance that the deceased had voted in California elections. It is a recognized rule that the intention with which removal is made from a particular state determines whether or not the domicile is abandoned. In particular. the place of her marital abode. But it is said that. has not been entered in the competition. The finding of the trial court to the effect that the deceased had acquired a domicile in the State of California is in our opinion based upon facts which sufficiently support said finding. where the evidence is scanty. Certainly in this case it cannot be said with any propriety that the domicile of the testatrix in California was suppressed by the acquisition of a new domicile in New York State. This record supplies no material with which to refute the conclusion of the trial court that a domicile was thus acquired by the testatrix in the State of California. with costs against the appellant. But the proof shows that however long the testatrix had resided in the Philippine Islands. The exercise of the franchise is one of the highest prerogatives of citizenship. and it is so ordered. It results that the trial court committed no error in considering the testatrix a citizen of the State of California. and that. or citizenship.. having established herself in these Islands as a place of permanent abode. 156). however long continued (In Re Estate of Johnson. it is a rule that a citizen of the United States cannot acquire citizenship in the Philippine Islands by residence here. The judgment will therefore be affirmed. It may also be here stated that the testatrix had kin in New York State whom she had visited more than once during her abode in California. her repeated declarations reveal a fixed intention of returning ultimately to the United States. and the only question to be determined in this case is. California was surely the state of her legal domicile. But upon this point also. The testatrix therefore remained at the time of her death a citizen of the United States. and intention is revealed only in the acts and declarations of the person concerned. acquired by choice and by residing therein. turns upon domicile.

749. In our said decision. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK). On January 13. Vitug.834.[2] the alleged advances consisted of P58. any or all of us during our lifetime. Vitug's estate with her (Mrs. This case is a chapter in an earlier suit decided by this Court[1] involving the probate of the two wills of the late Dolores Luchangco Vitug. who died in New York.731. pending probate. THE HONORABLE COURT OF APPEALS AND ROWENA FAUSTINO-CORONA."[7] . he withdrew the sums of P518. Romarico G. Metro Manila.27 as deficiency estate tax. Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No.R. NO. We further agree with each other and the BANK that the receipt or check of either. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum or P667.99 as "increment thereto. 1980. 1970."[3] According to Mr. P518. Vitug.40 spent for the payment of estate tax.A. petitioner Romarico G.[ G. As found by the Court of Appeals. and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors. we upheld the appointment of Nenita AIonte as cospecial administrator of Mrs. On April 12. U. 1985. the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667. Makati. or the receipt or check of the survivor or survivors. and shall be payable to and collectible or withdrawable by such survivor or survivors. plus interests. naming private respondent Rowena Faustino-Corona executrix.731.[5] The trial court[6] upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. for any payment or withdrawal made for our above–mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. there was allegedly no ground for reimbursement. VITUG. RESPONDENTS. Vitug's) widower.66. that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime. 35342-038 of the Bank of America. 35342-038 were conjugal partnership properties and part of the estate.. and P90.S. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate. March 29. 1985.834. VS.147. and hence.749. PETITIONER. which he claimed were personal funds. on November 10. 1990 ] ROMARICO G.27 and P90. 82027. Vitug.66 x x x.”[4] Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19.99 from savings account No.

but simply. assuming that it is a mere donation inter vivos. the time of death determining the event upon which the . of clear proof to the contrary. People’s Bank and Trust Co. we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera. belonged to the survivor. first or all. one of mortis causa. Vitug for reimbursement of his alleged advances to the estate. if any. Vitug.[11] and Macam v."[8] and secondly. 1985 (Annex II. the bequest or device must pertain to the testator. respondent Judge is directed to include provisionally the deposits in Savings Account No. In the case relied on. Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. People’s Bank and Trust Co. but the same order is sustained in all other respects. solemn. their joint holdings: xxx Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds deposited in the bank.[16] we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other. In addition. As already stated. it is a prohibited donation under the provisions of Article 133 of the Civil Code. revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. By virtue of Exhibit C. then. according to article 1790 of the Civil Code. and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first. the Court of Appeals. and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. and the balance. which should be embodied in a will. upon the death of either. Gatmaitan.[9] The dispositive portion of the decision or the Court of Appeals states: WHEREFORE. A will has been defined as "a personal. 35342-038 with the Bank of America. Gatmaitan[12] in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. The conveyance in question is not. in the inventory of actual properties possessed by the spouses at the time of the decedent's death.[17] In Macam v. the order of respondent Judge dated November 26. 35342038 were in the nature of conjugal funds. Makati. assails the appellate court's ruling on the strength of our decisions in Rivera v. held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code.” But it not infrequently happens that a person deposits money in the bank in the name of another. In the absence.[15] In this case. the monies subject of savings account No.. and that either of them could withdraw any part or the whole of said account during the lifetime of both. nullifies the assumption that Stephenson was the exclusive owner of the bank account. in the petition for certiorari filed by the herein private respondent. the surviving spouse.[13] The petition is meritorious. one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant. With costs against private respondent. which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana River ”served only as housemaid of the deceased. is an aleatory contract whereby. Rivera v. that they were joint (and several) owners thereof. Juana would become the owner of the house in case Leonarda died first.[10] In his petition.On the other hand.[18] it was held: This Court is of the opinion that Exhibit C."[14] In other words.

the latter has acquired upon her death a vested right over the amounts under savings account No. They did not dispose of it in favor of the other which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal. it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. No such vice has been imputed and established against the agreement involved in this case. because it was to take effect after the death of one party. 2010. has been categorized under the second. as we have warned: But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. it forms no more part of the estate of the deceased. Vitug. Inasmuch as Leonarda had died before Juana.[20] Neither is the survivorship agreement a donation inter vivos. In the case at bar. It is also our opinion that the agreement involves no modification of the conjugal partnership.[24] Under Article 2010 of the Code: ART. the risk was the death of one party and survivorship of the other. or which is to occur at an indeterminate time. that contract imposed a mere obligation with a term. a transaction stipulating on the value of currency. in order to frustrate our laws on wills. or to defeat the legitime of a forced heir. say.[26] There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes.” or (2) "which is to occur at an indeterminate time.”[22] and that it is no "cloak"[23] to circumvent the law on conjugal property relations. In the case at bar. Vitug having predeceased her husband. The conclusion is accordingly unavoidable that Mrs. if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation.acquisition of such right by the one or the other depended. Certainly. as held by the Court of Appeals. the sale of a sweepstake ticket. the spouses are not prohibited by law to invest conjugal property. it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool. the term being death. in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. more commonly denominated in banking parlance as an "and/or" account. Being the separate property of petitioner. when the spouses Vitug opened savings account No.[19] There is no showing that the funds exclusively belonged to one party. to transfer property in fraud of creditors. is binding upon the parties thereto. but in reality. For instance. as any other contract. we hold that the court was in error. one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain. for obvious reasons. 35342-038 of the Bank of America. the fulfillment of an aleatory contract depends on either the happening of an event which is (1)"uncertain. 35342-038. they merely put what rightfully belonged to them in a money-making venture. The validity of the contract seems debatable by reason of its "survivor-take-all" feature. and insurance have been held to fall under the first category. it may be assailed and annulled upon such grounds. Under the aforequoted provision. and conjugal partnership. Such agreements are permitted by the Civil Code. the latter thereupon acquired the ownership of the house. donations. However. et sequenta. Secondly. by way of a joint and several bank account. . the element of risk is present.[21] by "mere stipulation. having been acquired during the existence of the marital relations. or as held by the respondent court. This contract." A survivorship agreement. By an aleatory contract.[25] In either case. and hence it must be presumed to be conjugal. while a contract for life annuity or pension under Article 2021. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs.

(e) That the texture and fiber of the paper on the portion on which the signature of the attesting witnesses were affixed had been disturbed and affected by the interval of time and the ordinary exposure of the paper to the atmosphere between the signing of the testator and the attesting witnesses. Upon motion for bill of particulars filed by the petitioner (Natividad Icasiano)." The petitioner has appealed. 1946. (c) The attestation clause does not state that the alleged witnesses thereto witnessed and signed the will in the presence of the testator and of each other. in any event. Roxas. the probability was that one or two fountain pens only should have been used instead of three as testified to unanimously by the expert witnesses both for the proponent and the oppositors. Roxas. No. L-2396 December 11. 1945. G. and by the latter in the presence of the testator and of each other. dated June 29. are SET ASIDE.MARIA ROXAS. Jacinto Y. and its resolution. oppositors-appellees. the oppositors (Maria and Pedro Roxas) alleged that the will is vitiated by the following formal defects: "(a) The alleged last will and testament was not attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. An opposition was filed by Maria Roxas and Pedro Roxas (sister and brother of Pablo Roxas) on the ground that the alleged will was not executed and attested as required by law. is written has been folded and crumpled. Pablo Roxas died in the municipality of Bulacan. upon the other hand. de Icasiano (mother-in-law of Gupit) in barrio Sta. of the three attesting witnesses should be given controlling weight. Exhibit D. but the tell-tale letter "o" and the inequality of the marginal alignments of both the body and the attestation clause have betrayed the vain effort. ( f ) That had the testator and the attesting witnesses signed on the same occasion. DE ROXAS. Fortunato R. VDA. it was smoothened in order to eliminate or minimize as much as possible the folds and wrinkles. Natividad Icasiano (the widow) filed in the Court of First Instance of Bulacan a petition for the probate of a will alleged to have been left by Pablo Roxas. No date is given in the attestation clause. as required in section 618 of Act No. with the result that the will was not signed by the testator in the presence of the witnesses. 190 as amended by Act No. devising all his properties to Natividad Icasiano and Reynaldo Roxas (an adulterous son). 1950 In the matter of the petition for the probate of the will of the deceased Pablo M. Enriquez. should prevail. NATIVIDAD I. on July 14. the Court of First Instance of Bulacan rendered a decision disallowing the probate of the will. The testimony of Fortunato Gupit. in conjunction with the opinions of experts. which fact is revealed by the greater penetrations of the ink in the signature of Pablo M. ET AL. Province of Bulacan.R. 2645. (b) The testator and the instrumental witnesses did not sign the only page of the will on the left margin. Ana. the decision of the respondent appellate court. Gupit and Martin Rodrigo. 1987. unanimous in all essential points.. (c) That after it had been folded and crumpled. subsequently revoked as shown by the fact that it was crumpled with intent to destroy. The will is typewritten and worded in Tagalog and the attesting witnesses are Jacinto Y. however. argue that the testimony of Maria Roxas. 1988. (d) That the attestation clause was typewritten. The will is dated.WHEREFORE. Enriquez and Martin Rodrigo (the attesting witnesses) tends to show that they were in the house of Rosario Vda. On August 10. single space. municipality of . vs. (b) That the body of the will was typewritten before the signature of Pablo M. The lower court concluded that the body of the will was typewritten and signed by the testator on a date or occasion different from and anterior to the date or occasion when the attestation clause was typewritten and signed by the attesting witnesses. it was intended as a mere formal request which was. in the body. to the writing of the attestation clause on the same typewriter which was used in typewriting the body of the will. preparatory. Counsel for oppositors." After trial. nor was the page numbered in letters on the upper part of the sheet. dated February 9. Her counsel insist that the testimony. and a deliberate effort was exerted to make it appear that it was written by the testator himself at the same time with the body thereof. and that. Roxas had been affixed thereon and before it had been folded and crumpled. 1946. January 1. This conclusion was motivated by the following circumstances enumerated in the decision: "(a) That the paper on which the alleged will.

as a mere ruse to make the petitioner continue loving Reynaldo Roxas (adulterous son of Pablo Roxas). Two handwriting experts (Amadeo M. using the pen of Gupit. whereas the three attesting witnesses have no direct interest in the subject matter of the will. Pablo executed the will as it was shown to Maria. 1945. in the normal course of things and to be sure that the witnesses would not let the beneficiaries down. and the attesting witnesses are not related whatsoever with him. under the will. and this is obvious from (1) its recital of the circumstances that led it to believe that the will was not executed in accordance with law. the blotter being also applied. Roxas refolded the document and inserted the same in his hip pocket. does not bar relatives either of the testator of the heirs or legatees from acting as witnesses. on January 1. After a careful examination of the record in the light of the contentions of the parties. Such being the situation. Gupit is the husband of a half-sister of the petitioner. was reinserted in the typewriter for the insertion of the attestation clause which was signed afterwards by the three attesting witnesses. The fact that they may have some relationship with the petitioner is not sufficient to warrant the belief that they did not tell the truth. and Rodrigo is the husband of a deceased cousin of the petitioner. sister of Reynaldo. far from requiring the intervention of experts. and (2) its failure to analyze the oral evidence. the testimony of the three attesting witnesses — confirmatory of the due execution of the will — deserves full credit. But. noticing that the ink in his signature was spreading. He is the dean of the College of Business Administration and the comptroller of the Arellano University. In the second place. The latter got from his hip pocket a folded sheet of paper (the will here in question) and asked Gupit to read it. clean and uncrumpled. In our opinion. relatives of such beneficiaries. Cabe and Jose C. in the first place. as attesting witnesses. Roxas then made the request for the three to act as witnesses. Gupit is a certified public accountant. Thereafter. Enriquez and Rodrigo. not only because of their qualifications (hereinbefore pointed out) but because their reputation for probity has not been impeached. It is alleged that the testator had another adulterous child (Aida). This case is one in which the will is couched in a language known and spoken by the testator and the signatures of the three attesting witnesses are admittedly genuine. and it is unnatural that he would have failed to provide for said child. In the fourth place. approaching Gupit who was then reading a book. Enriquez comes from a distinguished family in Bulacan and is a student in the University of Santo Tomas. Reynaldo Roxas (adulterous son of Pablo Roxas) is named a legatee on equal footing with the petitioner. and without any attestation clause. because of the benefit of having seen and heard the witnesses. Pablo Roxas asked from her a sheet of typewriting paper. 1945. asked for a blotter. took their turns in signing the will. Gupit then signed with his own pen and. the findings of fact of a trial court. 1944. Martin Rodrigo is a businessman and landowner. Between two and three in the afternoon Pablo Roxas showed up and. Espinosa) were employed by the oppositors and their testimony tends to support the theory that the body of the will up to the signature of Pablo Roxas was typewritten on a plain sheet of paper. At about one in the afternoon of January 1. like the other oppositor Pedro Roxas. the testator may be inclined to employ. if not for his brother and sister (herein oppositors) in the will. This is again a mere conjecture which should not prevail over the testimony of the attesting witnesses. Enriquez and Rodrigo. that the sheet was subsequently removed from the typewriter and signed by the testator. Roxas.net Ordinarily. is one merely of credibility of witnesses. Fortunato A. signed it in the presence of Gupit. Enriquez is a second cousin of petitioner. we have no hesitancy in holding that the appealed decision is erroneous. Province of Bulacan. the lower court relied on the conclusions of experts. In the meantime Roxas proceeded to the dining hall where a mahjong game was being played and called Enriquez and Rodrigo who thereupon went to the sala and were asked to read the will previously handed to Gupit. therefore. that the sheet. The law. In the third place. after being crumpled and folded. is an intestate heir of Pablo Roxas and. are entitled to great weight. except that while the trial court observed that there are "greater penetrations of the ink in the signature of Pablo M." Espinosa and Cabe found that there is greater diffusion of ink in the signatures of the attesting witnesses. Jacinto Y. asked him to go to the sala with Roxas.Bulacan. if the testator really intended to dispose of his properties under said will. This expert opinion is based more or less on the circumstance enumerated in the appealed decision hereinbefore quoted. not to mention the fact that there is nothing in the record to show . if not wholly disinterested persons. Roxas. The testimony of oppositor Maria Roxas tends to show that on December 30. naturally interested in having the probate of said will disallowed. using his fountain pen. oppositor Maria Roxas. lawphil. Roxas got a blotter from a nearby writing desk and gave it to Gupit who accordingly applied it. in this case. Pablo Roxas came back to the house of Maria and showed the will in question signed by Pablo. the question that arises.

with costs against the appellees. coupled with the circumstance that the latter did not live with the testator. and that due to the abnormal time he undertook to prepare said will without the aid of a lawyer or notary public and without making copies thereof. We do not venture to impute bias to the experts introduced during the trial. or that no copies were made. Appellees' reference to other formal defects of the will (other than that hereinbefore disposed of) also needs no inquiry. Otley Beyer believes that one pen was used for the testator's signature. in view of their failure to show that the crumpling was caused with the intention to revoke. there might have been a reason known only to the testator why they should be excluded. after having been folded and crumpled. are "subject to inherent infirmities. absence. 1945. H. is of no moment. Too much emphasis and effort. on the contrary. had been placed on the supposition that after the body of the will had been typewritten. and another pen for the signatures of the witnesses. the appealed judgment is reversed and the will in question is hereby declared probated. For the difference in the ink diffusions and penetrations between the signatures of the testator and those of the three attesting witnesses may not be due solely to the folding and crumpling of the sheet on which the will is written. That the will in question was written on poor kind of stationery. Aside from the fact that a will need not be prepared by or acknowledged before a notary public. through experts Cabe and Espinosa. Rule 77. and the supposition does not necessarily. had prepared or seen previous wills and therefore was familiar with its wording and legal formalities. it is not improbable that the testator. but we hasten to state that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which. It should be borne in mind that the will was executed in January. before the date of the will in question. Rules of Court." In the instant case. but on such other factors as class of ink. The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when it provides that "if the will is contested. or that it was not prepared by a lawyer or notary public. The law does not require that the will should be written in one continuous act. . Jose C. As to the omission of the herein oppositors. Speculations on these matters should give way to the positive declarations of the attesting witnesses. So ordered. Prof. and the use of blotter. Cabe observed that four different fountain pens were used in signing the will.conclusively that the testator ever admitted that Aida is another adulterous child. or insanity of any of them must be satisfactorily shown to the court. Upon the other hand. much less conclusively. Espinosa was unable to determine whether the same pen was used for all the signatures. condition of paper.) The contention made by the appellees in their opposition that the will was revoked by the testator when he crumpled the same. class of pens. the sheet was removed from the machine and. Wherefore. it is significant that while Amadeo M. requires no serious consideration. must be produced and examined. when everything was practically in confusion due to the impending battles for the liberation of the Philippines. or why they need no participation. because it is not pressed herein. habit of writing. and when paper supply was almost exhausted. prove that the signing was not done on one occasion. it was replaced in the typewriter for the insertion of the attestation clause. all the subscribing witnesses present in the Philippines and not insane. and the death." (Section 11.

The proponent-appellant assigns the following as alleged errors of the lower court: 1. Evidence showed that Piraso knew how to speak the Ilocano dialect. denying the probate of the instrument Exhibit A. unless there is proof to the contrary." etc. 3. except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine Islands. that the said deceased Piraso did not know English.ACOP VS. before the present Code of Civil Procedure went into effect). unless it be written in the language or dialect known by the testator. The CFI of Benguet denied the probate of the last will and testament of the deceased Piraso because the will sought to be probated was written in English. Section 628 of the Code of Civil Procedure. as the last will and testament of the deceased Piraso. . In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in said dialect. 3. In the instant case. and could make himself understood in that dialect. (Emphasis supplied. he did not know the English language in which the will is written.) Nor can the presumption in favor of the will established by this court in Abangan vs. and the court is of the opinion that his will should have been written in that dialect. PIRASO. and could make himself understood in that dialect. real or personal. In refusing to admit the will in question to probate. "shall be valid to pass any estate. 2. 2. strictly provides that: "No will. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect. once it has been proved without contradiction. This appeal was taken from the judgment of the Court of First Instance of Benguet. Proponent-appellant Sixto Acop alleged that the lower court erred in not holding that the testator did not know the Ilocano dialect well enough to understand a will drawn up in said dialect. but the record contains positive proof that said Piraso knew no other language than the Igorot dialect. although imperfectly. The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows: The evidence shows that Piraso knew how to speak the Ilocano dialect. not only is it not proven the English is the language of the City of Baguio where the deceased Piraso lived and where the will was drawn. Such statements were not unnecessary for the decision of the case. nor charge or affect the same. in which language the instrument Exhibit A. with a smattering of Ilocano. ISSUE: Should the will be probated? HELD: The testator is presumed to know the dialect of the locality where he resides. that is. although imperfectly. alleged to be his will. 52 Phil 660 FACTS: 1. is drawn.

. having been written in the English language with which the latter was unacquainted. We consider the other question raised in this appeal needless and immaterial to the adjudication of this case. in order to be valid. we repeat. as it was. that is. even he invoked in support of the probate of said document Exhibit A. as a will. The fact is. he did not know the English language in which Exhibit A is written. with a smattering of Ilocano. but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect. must be written in the Ilocano dialect.Abangan (40 Phil. because. unless there is proof to the contrary. So that even if such a presumption could have been raised in this case it would have been wholly contradicted and destroyed. in the instant case. whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing. So ordered.. it having been. 476). that the instrument in question could not be probated as the last will and testament of the deceased Piraso. proven. The judgment appealed from is affirmed. to the effect that the testator is presumed to know the dialect of the locality where he resides. and inevitably prevents its probate. with the costs of this instance against the appellant. that it is quite certain that the instrument Exhibit A was written in English which the supposed testator Piraso did not know. and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will written in said dialect. not only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn. Such a result based upon solidly established facts would be the same whether or not it be technically held that said will. and this is sufficient to invalidate said will according to the clear and positive provisions of the law.