wills and succession for conflicts of laws

7/27/2019 Wills and Succession for conflicts of laws

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

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG,

ancillary administrator-appellee, vs. BENGUET CONSOLIDATED, INC., oppositor-

appellant.

Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.

Ross, Salcedo, Del Rosario, Bito & Misa for oppositor-appellant.

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; WHEN

ANCILLARY ADMINISTRATION IS PROPER. The ancillary administration is proper,

whenever a person dies, leaving in a country other than that of his last domicile,

property to be administered in the nature of assets of the deceased liable for his

individual debts or to be distributed among his heirs (Johannes v. Harvey, 43 Phil.

175). Ancillary administration is necessary or the reason for such administration isbecause a grant of administration does not ex proprio vigore have any effect

beyond the limits of the country in which it is granted. Hence, an administrator

appointed in a foreign state has no authority in the Philippines.

2. ID.; ID.; ID.; SCOPE OF POWER AND AUTHORITY OF AN ANCILLARY

ADMINISTRATOR. No one could dispute the power of an ancillary administrator to

gain control and possession of all assets of the decedent within the jurisdiction of

the Philippines. Such a power is inherent in his duty to settle her estate and satisfy

the claims of local creditors (Rule 84, Sec. 3, Rules of Court. Cf Pavia v. De la Rosa,

8 Phil. 70; Liwanag v. Reyes, L-19159, Sept. 29, 1964; Ignacio v. Elchico, L-18937,

May 16, 1967; etc.). It is a general rule universally recognized that administration,whether principal or ancillary, certainly extends to the assets of a decedent found

within the state or country where it was granted, the corollary being "that an

administrator appointed in one state or country has no power over property in

another state or country" (Leon and Ghezzi v. Manufacturers Life Ins. Co., 90 Phil.

459).

3. ID.; ID.; ID.; ID.; CASE AT BAR. Since, in the case at bar, there is a refusal,

persistently adhered to by the domiciliary administrator in New York, to deliver the

shares of stocks of appellant corporation owned by the decedent to the ancillary

administrator in the Philippines, there was nothing unreasonable or arbitrary in

considering them as lost and requiring the appellant to issue new certificates in lieu

thereof. Thereby, the task incumbent under the law on the ancillary administrator

could be discharged and his responsibility fulfilled. Any other view would result in

the compliance to a valid judicial order being made to depend on the uncontrolled

discretion of a party or entity.


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4. CORPORATION LAW; CORPORATIONS; CONCEPT AND NATURE. A

corporation is an artificial being created by operation of law (Sec. 2, Act No. 1459).

A corporation as known to Philippine jurisprudence is a creature without any

existence until it has received the imprimatur of the state acting according to law. It

is logically inconceivable therefore that it will have rights and privileges of a higher

priority than that of its creator. More than that, it cannot legitimately refuse to yieldobedience to acts of its state organs, certainly not excluding the judiciary, whenever

called upon to do so. A corporation is not in fact and in reality a person, but the law

treats it as though it were a person by process of fiction, or by regarding it as an

artificial person distinct and separate from its individual stockholders (1 Fletcher,

Cyclopedia Corporations, pp. 19-20)

D E C I S I O N

FERNANDO, J p:

Confronted by an obstinate and adamant refusal of the domiciliary administrator,

the County Trust Company of New York, United States of America, of the estate of

the deceased Idonah Slade Perkins, who died in New York City on March 27, 1960,

to surrender to the ancillary administrator in the Philippines the stock certificates

owned by her in a Philippine corporation, Benguet Consolidated, Inc., to satisfy the

legitimate claims of local creditors, the lower court, then presided by the Honorable

Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After

considering the motion of the ancillary administrator, dated February 11, 1964, as

well as the opposition filed by the Benguet Consolidated, Inc., the Court hereby (1)

considers as lost for all purposes in connection with the administration and

liquidation of the Philippine estate of Idonah Slade Perkins the stock certificates

covering the 33,002 shares of stock standing in her name in the books of theBenguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs

said corporation to issue new certificates in lieu thereof, the same to be delivered

by said corporation to either the incumbent ancillary administrator or to the Probate

Division of this Court." 1

From such an order, an appeal was taken to this Court not by the domiciliary

administrator, the County Trust Company of New York, but by the Philippine

corporation, the Benguet Consolidated, Inc. The appeal cannot possibly prosper. The

order challenged represents a response and expresses a policy, to paraphrase

Frankfurter, arising out of a specific problem, addressed to the attainment of

specific ends by the use of specific remedies, with full and ample support from legal

doctrines of weight and significance.

The facts will explain why. As set forth in the brief of appellant Benguet

Consolidated, Inc., Idonah Slade Perkins, who died on March 27, 1960 in New York

City, left among others, two stock certificates covering 33,002 shares of appellant,

the certificates being in the possession of the County Trust Company of New York,


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which as noted, is the domiciliary administrator of the estate of the deceased 2

Then came this portion of the appellant's brief: "On August 12, 1960, Prospero

Sanidad instituted ancillary administration proceedings in the Court of First Instance

of Manila; Lazaro A. Marquez was appointed ancillary administrator; and on January

22, 1963, he was substituted by the appellee Renato D. Tayag. A dispute arose

between the domiciliary administrator in New York and the ancillary administrator inthe Philippines as to which of them was entitled to the possession of the stock

certificates in question. On January 27, 1964, the Court of First Instance of Manila

ordered the domiciliary administrator, County Trust Company, to `produce and

deposit' them with the ancillary administrator or with the Clerk of Court. The

domiciliary administrator did not comply with the order, and on February 11, 1964,

the ancillary administrator petitioned the court to "issue an order declaring the

certificate or certificates of stocks covering the 33,002 shares issued in the name of

Idonah Slade Perkins by Benguet Consolidated, Inc. be declared [or] considered as

lost." 3

It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it isimmaterial" as far as it is concerned as to "who is entitled to the possession of the

stock certificates in question; appellant opposed the petition of the ancillary

administrator because the said stock certificates are in existence, they are today in

the possession of the domiciliary administrator, the County Trust Company, in New

York, U.S.A.. . . ." 4

It is its view, therefore, that under the circumstances, the stock certificates cannot

be declared or considered as lost. Moreover, it would allege that there was a failure

to observe certain requirements of its by-laws before new stock certificates could be

issued. Hence, its appeal.

As was made clear at the outset of this opinion, the appeal lacks merit. The

challenged order constitutes an emphatic affirmation of judicial authority sought to

be emasculated by the willful conduct of the domiciliary administrator in refusing to

accord obedience to a court decree. How, then, can this order be stigmatized as

illegal?

As is true of many problems confronting the judiciary, such a response was called

for by the realities of the situation. What cannot be ignored is that conduct

bordering on willful defiance, if it had not actually reached it, cannot without undue

loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in

flexibility and resourcefulness as to preclude such a solution, the more so as deeper

reflection would make clear its being buttressed by indisputable principles and

supported by the strongest policy considerations.

It can truly be said then that the result arrived at upheld and vindicated the honor

of the judiciary no less than that of the country. Through this challenged order,

there is thus dispelled the atmosphere of contingent frustration brought about by


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the persistence of the domiciliary administrator to hold on to the stock certificates

after it had, as admitted, voluntarily submitted itself to the jurisdiction of the lower

court by entering its appearance through counsel on June 27, 1963, and filing a

petition for relief from a previous order of March 15, 1963. Thus did the lower court,

in the order now on appeal, impart vitality and effectiveness to what was decreed.

For without it, what it had been decided would be set at naught and nullified. Unlesssuch a blatant disregard by the domiciliary administrator, with residence abroad, of

what was previously ordained by a court order could be thus remedied, it would

have entailed, insofar as this matter was concerned, not a partial but a well-nigh

complete paralysis of judicial authority.

1. Appellant Benguet Consolidated, Inc. did not dispute the power of the

appellee ancillary administrator to gain control and possession of all assets of the

decedent within the jurisdiction of the Philippines. Nor could it. Such a power is

inherent in his duty to settle her estate and satisfy the claims of local creditors. 5 As

Justice Tuason speaking for this Court made clear, it is a "general rule universally

recognized" that administration, whether principal or ancillary, certainly "extends tothe assets of a decedent found within the state or country where it was granted,"

the corollary being "that an administrator appointed in one state or country has no

power over property in another state or country." 6

It is to be noted that the scope of the power of the ancillary administrator was, in an

earlier case, set forth by Justice Malcolm. Thus: "It is often necessary to have more

than one administration of an estate. When a person dies intestate owning property

in the country of his domicile as well as in a foreign country, administration is had in

both countries. That which is granted in the jurisdiction of decedent's last domicile

is termed the principal administration, while any other administration is termed the

ancillary administration. The reason for the latter is because a grant of

administration does not ex proprio vigore have any effect beyond the limits of the

country in which it is granted. Hence, an administrator appointed in a foreign state

has no authority in the [Philippines]. The ancillary administration is proper,

whenever a person dies, leaving in a country other than that of his last domicile,

property to be administered in the nature of assets of the deceased liable for his

individual debts or to be distributed among his heirs." 7

It would follow then that the authority of the probate court to require that ancillary

administrator's right to "the stock certificates covering the 33,002 shares .. standing

in her name in the books of [appellant] Benguet Consolidated, Inc.." be respected isequally beyond question. For appellant is a Philippine corporation owing full

allegiance and subject to the unrestricted jurisdiction of local courts. Its shares of

stock cannot therefore be considered in any wise as immune from lawful court

orders.

Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue 8 finds

application. "In the instant case, the actual situs of the shares of stock is in the


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Philippines, the corporation being domiciled [here]." To the force of the above

undeniable proposition, not even appellant is insensible. It does not dispute it. Nor

could it successfully do so even if it were so minded.

2. In the face of such incontrovertible doctrines that argue in a rather conclusive

fashion for the legality of the challenged order, how does appellant BenguetConsolidated, Inc. propose to carry the extremely heavy burden of persuasion of

precisely demonstrating the contrary? It would assign as the basic error allegedly

committed by the lower court its "considering as lost the stock certificates covering

33,002 shares of Benguet belonging to the deceased Idonah Slade Perkins, . . ." 9

More specifically, appellant would stress that the "lower court could not `consider as

lost' the stock certificates in question when, as a matter of fact, his Honor the trial

Judge knew, and does know, and it is admitted by the appellee, that the said stock

certificates are in existence and are today in the possession of the domiciliary

administrator in New York." 10

There may be an element of fiction in the above view of the lower court. Thatcertainly does not suffice to call for the reversal of the appealed order. Since there

is a refusal, persistently adhered to by the domiciliary administrator in New York, to

deliver the shares of stocks of appellant corporation owned by the decedent to the

ancillary administrator in the Philippines, there was nothing unreasonable or

arbitrary in considering them as lost and requiring the appellant to issue new

certificates in lieu thereof. Thereby, the task incumbent under the law on the

ancillary administrator could be discharged and his responsibility fulfilled.

Any other view would result in the compliance to a valid judicial order being made

to depend on the uncontrolled discretion of the party or entity, in this case

domiciled abroad, which thus far has shown the utmost persistence in refusing toyield obedience. Certainly, appellant would not be heard to contend in all

seriousness that a judicial decree could be treated as a mere scrap of paper, the

court issuing it being powerless to remedy its flagrant disregard.

It may be admitted of course that such alleged loss as found by the lower court did

not correspond exactly with the facts. To be more blunt, the quality of truth may be

lacking in such a conclusion arrived at. It is to be remembered however, again to

borrow from Frankfurter, "that fictions which the law may rely upon in the pursuit of

legitimate ends have played an important part in its development." 11

Speaking of the common law in its earlier period, Cardozo could state that fictions"were devices to advance the ends of justice, [even if] clumsy and at times

offensive." 12 Some of them have persisted even to the present, that eminent jurist,

noting "the quasi contract, the adopted child, the constructive trust, all of

flourishing vitality, to attest the empire of `as if' today." 13 He likewise noted "a

class of fictions of another order, the fiction which is a working tool of thought, but


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which at times hides itself from view till reflection and analysis have brought it to

the light." 14

What cannot be disputed, therefore, is the at times indispensable role that fictions

as such played in the law. There should be then on the part of the appellant a

further refinement in the catholicity of its condemnation of such judicial technique.If ever an occasion did call for the employment of a legal fiction to put an end to the

anomalous situation of a valid judicial order being disregarded with apparent

impunity, this is it. What is thus most obvious is that this particular alleged error

does not carry persuasion.

3. Appellant Benguet Consolidated, Inc. would seek to bolster the above

contention by its invoking one of the provisions of its by-laws which would set forth

the procedure to be followed in case of a lost, stolen or destroyed stock certificate;

it would stress that in the event of a contest or the pendency of an action regarding

ownership of such certificate or certificates of stock allegedly lost, stolen or

destroyed, the issuance of a new certificate or certificates would await the "finaldecision by [a] court regarding the ownership [thereof]." 15

Such reliance is misplaced. In the first place, there is no such occasion to apply such

a by-law. It is admitted that the foreign domiciliary administrator did not appeal

from the order now in question. Moreover, there is likewise the express admission of

appellant that as far as it is concerned, "it is immaterial . . . who is entitled to the

possession of the stock certificates . . ." Even if such were not the case, it would be

a legal absurdity to impart to such a provision conclusiveness and finality. Assuming

that a contrariety exists between the above by-law and the command of a court

decree, the latter is to be followed.

It is understandable, as Cardozo pointed out, that the Constitution overrides a

statute, to which, however, the judiciary must yield deference, when appropriately

invoked and deemed applicable. It would be most highly unorthodox, however, if a

corporate by-law would be accorded such a high estate in the jural order that a

court must not only take note of it but yield to its alleged controlling force.

The fear of appellant of a contingent liability with which it could be saddled unless

the appealed order be set aside for its inconsistency with one of its by-laws does not

impress us. Its obedience to a lawful court order certainly constitutes a valid

defense, assuming that such apprehension of a possible court action against it

could possibly materialize. Thus far, nothing in the circumstances as they havedeveloped gives substance to such a fear. Gossamer possibilities of a future

prejudice to appellant do not suffice to nullify the lawful exercise of judicial

authority.

4. What is more the view adopted by appellant Benguet Consolidated, Inc. is

fraught with implications at war with the basic postulates of corporate theory.


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We start with the undeniable premise that, "a corporation is an artificial being

created by operation of law . . ." 16 It owes its life to the state, its birth being purely

dependent on its will. As Berle so aptly stated: "Classically, a corporation was

conceived as an artificial person, owing its existence through creation by a

sovereign power. 17 As a matter of fact, the statutory language employed owes

much to Chief Justice Marshall, who in the Dartmouth College decision, defined acorporation precisely as "an artificial being invisible, intangible, and existing only in

contemplation of law." 18

The well-known authority Fletcher could summarize the matter thus: "A corporation

is not in fact and in reality a person, but the law treats it as though it were a person

by process of fiction, or by regarding it as an artificial person distinct and separate

from its individual stockholders.. It owes its existence to law. It is an artificial person

created by law for certain specific purposes, the extent of whose existence, powers

and liberties is fixed by its charter." 19 Dean Pound's terse summary, a juristic

person, resulting from an association of human beings granted legal personality by

the state, puts the matter neatly. 20

There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which

to quote from Friedmann, "is the reality of the group as a social and legal entity,

independent of state recognition and concession." 21 A corporation as known to

Philippine jurisprudence is a creature without any existence until it has received the

imprimatur of the state acting according to law. It is logically inconceivable

therefore that it will have rights and privileges of a higher priority than that of its

creator. More than that, it cannot legitimately refuse to yield obedience to acts of its

state organs, certainly not excluding the judiciary, whenever called upon to do so.

As a matter of fact, a corporation once it comes into being, following American lawstill of persuasive authority in our jurisdiction, comes more often within the ken of

the judiciary than the other two coordinate branches. It institutes the appropriate

Court Action to enforce its rights. Correlatively, it is not immune from judicial control

in those instances, where a duty under the law as ascertained in an appropriate

legal proceeding is cast upon it.

To assert that it can choose which court order to follow and which to disregard is to

confer upon it not autonomy which may be conceded but license which cannot be

tolerated. It is to argue that it may, when so minded, overrule the state, the source

of its very existence; it is to contend that what any of its governmental organs may

lawfully require could be ignored at will. So extravagant a claim cannot possibly

merit approval.

5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was shown

that in a guardianship proceeding then pending in a lower court, the United States

Veterans Administration filed a motion for the refund of a certain sum of money

paid to the minor under guardianship, alleging that the lower court had previously


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granted its petition to consider the deceased father as not entitled to guerilla

benefits according to a determination arrived at by its main office in the United

States. The motion was denied. In seeking a reconsideration of such order, the

Administrator relied on an American federal statute making his decisions "final and

conclusive on all questions of law or fact" precluding any other American official to

examine the matter anew, "except a judge or judges of the United States court." 23Reconsideration was denied, and the Administrator appealed.

In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of

the opinion that the appeal should be rejected. The provisions of the U.S. Code,

invoked by the appellant, make the decisions of U.S. Veteran Administrator final and

conclusive when made on claims properly submitted to him for resolution; but they

are not applicable to the present case, where the Administrator is not acting as a

judge but as a litigant. There is a great difference between actions against the

Administrator (which must be filed strictly in accordance with the conditions that

are imposed by the Veterans' Act, including the exclusive review by United States

courts), and those actions where the Veterans' Administrator seeks a remedy fromour courts and submits to their jurisdiction by filing actions therein. Our attention

has not been called to any law or treaty that would make the findings of the

Veterans' Administrator, in actions where he is a party, conclusive on our courts.

That, in effect, would deprive our tribunals of judicial discretion and render them

mere subordinate instrumentalities of the Veterans' Administrator."

It is bad enough as the Viloria decision made patent for our judiciary to accept as

final and conclusive, determinations made by foreign governmental agencies. It is

infinitely worse if through the absence of any coercive power by our courts over

juridical persons within our jurisdiction, the force and effectivity of their orders could

be made to depend on the whim or caprice of alien entities. It is difficult to imagine

of a situation more offensive to the dignity of the bench or the honor of the country.

Yet that would be the effect, even if unintended, of the proposition to which

appellant Benguet Consolidated seems to be firmly committed as shown by its

failure to accept the validity of the order complained of; it seeks its reversal.

Certainly we must at all pains see to it that it does not succeed. The deplorable

consequences attendant on appellant prevailing attest to the necessity of a

negative response from us. That is what appellant will get.

That is all then that this case presents. It is obvious why the appeal cannot succeed.

It is always easy to conjure extreme and even oppressive possibilities. That is not

decisive. It does not settle the issue. What carries weight and conviction is the

result arrived at, the just solution obtained, grounded in the soundest of legal

doctrines and distinguished by its correspondence with what a sense of realism


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requires. For through the appealed order, the imperative requirement of justice

according to law is satisfied and national dignity and honor maintained.

WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the

Court of First Instance, dated May 18, 1964, is affirmed. With costs against

oppositor-appellant Benguet Consolidated, Inc.

[G.R. No. L-12105. January 30, 1960.]

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor

and appellee, vs. MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY

LYDIA BOHANAN, oppositors and appellants.

Jose D. Cortes for appellants.

Ohnick, Velilla & Balonkita for appellee.

SYLLABUS

1. WILLS; TESTAMENTARY DISPOSITIONS, WHAT LAW GOVERNS; APPROVAL OF

PROJECT OF PARTITION. Article 10 of the old Civil Code (Article 16, new Civil

Code) provides that the validity of testamentary dispositions are to be governed by

the national law of the person whose succession is in question. In case at bar, the

testator was a citizen of the State of Nevada. Since the laws of said state allow the

testator to dispose of all his property according to his will, his testamentary

dispositions depriving his wife and children of what should be their legitimes under


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the laws of the Philippines, should be respected and the project of partition made in

accordance with his testamentary dispositions should be approved.

2. ID.; ID.; JUDICIAL NOTICE OF FOREIGN LAW IF INTRODUCED IN EVIDENCE.

The pertinent law of the state of the testator may be taken judicial notice of without

proof of such law having been offered at the hearing of the project of partitionwhere it appears that said law was admitted by the court as exhibit during the

probate of the will; that the same was introduced as evidence of a motion of one of

the appellants for withdrawal of a certain sum of money; and that the other

appellants do not dispute the said law.

D E C I S I O N

LABRADOR, J p:

Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San

Jose, presiding, dismissing the objections filed by Magdalena C. Bohanan, Mary

Bohanan and Edward Bohanan to the project of partition submitted by the executorand approving the said project.

On April 24, 1950, the Court of First Instance of Manila, Hon. Rafael Amparo,

presiding, admitted to probate a last will and testament of C. O. Bohanan, executed

by him on April 23, 1944 in Manila. In the said order, the court made the following

findings:

"According to the evidence of the opponents the testator was born in Nebraska and

therefore a citizen of that state, or at least a citizen of California where some of hisproperties are located. This contention is untenable. Notwithstanding the long

residence of the decedent in the Philippines, his stay here was merely temporary,

and he continued and remained to be a citizen of the United States and of the state

of his particular choice, which is Nevada, as stated in his will. He had planned to

spend the rest of his days in that state. His permanent residence or domicile in the

United States depended upon his personal intent or desire, and he selected Nevada

as his domicile and therefore at the time of his death, he was a citizen of that state.

Nobody can choose his domicile or permanent residence for him. That is his

exclusive personal right.

Wherefore, the court finds that the testator C. O. Bohanan was at the time of hisdeath a citizen of the United States and of the State of Nevada and declares that his

will and testament, Exhibit A, is fully in accordance with the laws of the state of

Nevada and admits the same to probate. Accordingly, the Philippine Trust

Company, named as the executor of the will, is hereby appointed to such executor

and upon the filing of a bond in the sum of P10,000.00, let letters testamentary be


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issued and after taking the prescribed oath, it may enter upon the execution and

performance of its trust." (pp. 26-27, R.O.A.)

It does not appear that the order granting probate was ever questioned on appeal.

The executor filed a project of partition dated January 24, 1956, making, in

accordance with the provisions of the will, the following adjudications: (1) one-halfof the residuary estate, to the Farmers and Merchants National Bank of Los Angeles,

California, U.S.A. in trust only for the benefit of testator's grandson Edward George

Bohanan, which consists of P90,819.67 in cash and one-half in shares of stock of

several mining companies; (2) the other half of the residuary estate to the testator's

brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike.

This consists in the same amount of cash and of shares of mining stock similar to

those given to testator's grandson; (3) legacies of P6,000 each to his (testator) son,

Edward Gilbert Bohanan, and his daughter, Mary Lydia Bohanan, to be paid in three

yearly installments; (4) legacies to Clara Daen, in the amount of P10,000.00;

Katherine Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;

It will be seen from the above that out of the total estate (after deducting

administration expenses) of P211,639.33 in cash, the testator gave his grandson

P90,819.67 and one-half of all shares of stock of several mining companies and to

his brother and sister the same amount. To his children he gave a legacy of only

P6,000 each, or a total of P12,000.

The wife Magdalena C. Bohanan and her two children question the validity of the

testamentary provisions disposing of the estate in the manner above indicated,

claiming that they have been deprived of the legitime that the laws of the forum

concede to them.

The first question refers to the share that the wife of the testator, Magdalena C.

Bohanan, should be entitled to receive. The will has not given her any share in the

estate left by the testator. It is argued that it was error for the trial court to have

recognized the Reno divorce secured by the testator from his Filipino wife

Magdalena C. Bohanan, and that said divorce should be declared a nullity in this

jurisdiction, citing the cases of Querubin vs. Querubin, 87 Phil., 124, 47 Off. Gaz.,

(Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 851, Ramirez vs. Gmur, 42 Phil.,

855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to recognize the

claim of the widow on the ground that the laws of Nevada, of which the deceased

was a citizen, allow him to dispose of all of his properties without requiring him to

leave any portion of his estate to his wife. Section 9905 of Nevada Compiled Laws of

1925 provides:

"Every person over the age of eighteen years, of sound mind, may, by last will,

dispose of all his or her estate, real and personal, the same being chargeable with

the payment of the testator's debts."


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Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a

share in the testator's estate had already been passed upon adversely against her

in an order dated June 18, 1955, (pp. 155- 159, Vol. II Records, Court of First

Instance), which had become final, as Magdalena C. Bohanan does not appear to

have appealed therefrom to question its validity. On December 16, 1953, the said

former wife filed a motion to withdraw the sum of P20,000 from the funds of theestate, chargeable against her share in the conjugal property, (See pp. 294-297,

Vol. I, Record, Court of First Instance), and the court in its said error found that

there exists no community property owned by the decedent and his former wife at

the time the decree of divorce was issued. As already adverted to, the decision of

the court had become final and Magdalena C. Bohanan may no longer question the

fact contained therein, i.e. that there was no community property acquired by the

testator and Magdalena C. Bohanan during their coverture.

Moreover, the court below had found that the testator and Magdalena C. Bohanan

were married on January 30, 1909, and that divorce was granted to him on May 20,

1922; that sometime in 1925, Magdalena C. Bohanan married Carl Aaron and thismarriage was subsisting at the time of the death of the testator. Since no right to

share in the inheritance in favor of a divorced wife exists in the State of Nevada and

since the court below had already found that there was no conjugal property

between the testator and Magdalena C. Bohanan, the latter can now have no legal

claim to any portion of the estate left by the testator.

The most important issue is the claim of the testator's children, Edward and Mary

Lydia, who had received legacies in the amount of P6,000 each only, and, therefore,

have not been given their shares in the estate which, in accordance with the laws of

the forum, should be two-thirds of the estate left by the testator. Is the failure of the

testator to give his children two-thirds of the estate left by him at the time of his

death, in accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in

1944, expressly provides that successional rights to personal property are to be

governed by the national law of the person whose succession is in question. Says

the law on this point:

"Nevertheless, legal and testamentary successions, in respect to the order of

succession as well as to the extent 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 and

the country in which it is found." (par. 2, Art. 10, old Civil Code, which is the same

as par. 2 Art. 16, new Civil Code.)

In the proceedings for the probate of the will, it was found out and it was decided

that the testator was a citizen of the State of Nevada because he had selected this

as his domicile and his permanent residence. (See Decision dated April 24, 1950,


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supra). So the question at issue is whether the testamentary dispositions, especially

those for the children which are short of the legitime given them by the Civil Code

of the Philippines, are valid. It is not disputed that the laws of Nevada allow a

testator to dispose of all his properties by will (Sec. 9905, Compiled Nevada Laws of

1925, supra). It does not appear that at the time of the hearing of the project of

partition, the above-quoted provision was introduced in evidence, as it was theexecutor's duty to do. The law of Nevada, being a foreign law, can only be proved in

our courts in the form and manner provided for by our Rules, which are as follows:

"SEC. 41. Proof of public or official record. An official record or an entry therein,

when admissible for any purpose, may be evidenced by an official publication

thereof or by a copy attested by the officer having the legal custody of the record,

or by his deputy, and accompanied, if the record is not kept in the Philippines, with

a certificate that such officer has the custody." . . . (Rule 123)

We have, however, consulted the records of the case in the court below and we

have found that during the hearing on October 4, 1954 of the motion of MagdalenaC. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially

Section 9905, Compiled Nevada Laws, was introduced in evidence by appellants'

(herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records,

Court of First Instance). Again said law was presented by the counsel for the

executor and admitted by the Court as Exhibit "B" during the hearing of the case on

January 23, 1950 before Judge Rafael Amparo (see Records, Court of First Instance,

Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-

quoted provision of the laws of the State of Nevada. Under all the above

circumstances, we are constrained to hold that the pertinent law of Nevada,especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial

notice of by us, without proof of such law having been offered at the hearing of the

project of partition.

As in accordance with Article 10 of the old Civil Code, the validity of testamentary

dispositions are to be governed by the national law of the testator, and as it has

been decided and it is not disputed that the national law of the testator is that of

the State of Nevada, already indicated above, which allows a testator to dispose of

all his property according to his will, as in the case at bar, the order of the court

approving the project of partition made in accordance with the testamentary

provisions, must be, as it is hereby affirmed, with costs against appellants.


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[G.R. No. 22595. November 1, 1924.]

"Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-

appellee, vs. ANDRE BRIMO, opponent-appellant.

Ross, Lawrence & Selph for appellant.

Camus & Delgado for appellee.

SYLLABUS

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 vs. Collector of Customs, 36 Phil., 472.)


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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.

D E C I S I O N

ROMUALDEZ, J p:

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) the 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 Pietro Lanza of the deceased's business and the

deed of transfer of said business; and (5) the declaration that the Turkish laws areimpertinent 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 of article 10 of the Civil Code which, among other things, provides the

following:

"Nevertheless, legal and testamentary successions, in respect to the order ofsuccession 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 testamentary dispositions

are not in accordance with the Turkish laws, inasmuch as he did not present any


16/17

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 onthis 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.

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

In regard to the first assignment of error which deals with the exclusion of the

herein appellant as a legatee, inasmuch as he is one of the persons designated as

such in the will, it must be taken into consideration that such exclusion is based on

the last part of the second clause of the will, which says:

"Second. I likewise desire to state that although, by law, I am a Turkish citizen, this

citizenship having been conferred upon me by conquest and not by free choice, norby nationality and, on the other hand, 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, it is my wish that the distribution of my property and everything in

connection with this, my will, be made and disposed of in accordance with the laws

in force in the Philippine Islands, requesting all of my relatives to respect this wish,

otherwise, I annul and cancel beforehand whatever disposition found in this will

favorable to the person or persons who fail to comply with this request."

The institution of legatees in this will is conditional, and the condition is that the

instituted legatees must respect the testator's will to distribute his property, not in

accordance with the laws of his nationality, but in accordance with the laws of the

Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to

comply with it, as the herein oppositor who, by his attitude in these proceedings has

not respected the will of the testator, as expressed, is prevented from receiving his

legacy.


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The fact is, however, that the said condition is void, being contrary to law, 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, even should the testator otherwise provide."

And said condition is contrary to law because it expressly ignores the testator's

national law when, according to article 10 of the Civil Code above quoted, such

national law of the testator is the one to govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered

unwritten, and the institution of legatees in said will is unconditional and

consequently valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which

shall govern it, and to the condition imposed upon the legatees, is null and void,

being contrary to law.

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 laws.

Therefore, 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, and the scheme of partition

submitted by the judicial administrator is approved in all other respects, without

any pronouncement as to costs. So ordered.

wills and succession for conflicts of laws

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