No.

11970
FABIAN B. S. ABELLARA, plaintiff-appellant,
vs.
HERMENEGILDO BALANAG, ET AL., defendants-appellees.
Alejo Mabanag for appellant.
E. S. Smith for appellees.
CARSON, J .:
In this action the plaintiff and appellant seeks to eject some nineteen alleged trespassers, or squatters,
from the hacienda described in the complaint.
Plaintiff undertook to maintain his action without the aid of counsel and as might be expected, the
proceedings in the court below fell into the utmost confusion, and culminated in the dismissal of the
complaint upon motion, after the plaintiff had submitted his evidence and before any witnesses had been
called for the defendants.
Defendants, in their answer, denied the plaintiff's allegations of ownership of the lands described in his
complaint and set up a claim of prescriptive title to the various parcels of land occupied by themselves.
The material evidence submitted by the plaintiff consisted of a duly registered composition title to
the hacienda issued in the name of his father; a deed of gift of the hacienda to himself, executed by his
father in a public instrument; and his own testimony as to the identity of the land described in the
complaint with the land included in the composition title, and as to the entry upon and possession of
various parcels of land, within the boundary lines of this tract, by the defendants.
He testified that some time after the Spanish-American war these defendants entered upon
the hacienda without his knowledge or consent; that after gaining an entry, they took possession of
various parcels of land and constructed houses thereon, and have continued in possession over since; that
at first he had tolerated their presence on the hacienda, and had made no attempt to assert his rights of
ownership, because of the unsettled conditions of the country; that, later on, he demanded rent and made a
number of efforts to secure the recognition of his rights by amicable arrangements with the intruders; but
that all his proposals for a friendly settlement of his claims had been rejected so that, finally, he had been
compelled to institute this action.
Had he established his own title to the hacienda by satisfactory evidence, this testimony would seem to
have been sufficient to put the defendants on their proof as to their respective claims of prescriptive title.
The burden of proof of a claim of prescriptive title to lands included within a registered grant of lands
from the Spanish sovereign, rests upon him who asserts it; and we cannot agree with the contention of
counsel for the defendants that it affirmatively appears from the testimony of the plaintiff himself that the
defendants or any of them had been in open, notorious and adverse possession under a claim of
ownership for the full prescriptive period of ten years.
It is true, as intimated by the trial judge that the admissions of the plaintiff went far to establish the
prescriptive title of a few of the defendants; but we are of opinion that the evidence is not sufficiently
definite and concise as to the nature of their occupation of any of the parcels of land in question, to
sustain an affirmative ruling in favor of their claims in this regard.
The trial judge dismissed the complaint on two grounds: first, that plaintiff's evidence was insufficient to
sustain a finding as to the precise location and extent of the various parcels of land occupied by the
defendants; and, second, that plaintiff's documentary evidence was insufficient to establish title in himself,
because it does not appear that he accepted the donation in a public instrument and notified the donor of
his acceptance in the manner and from prescribed in article 633 of the Civil Code.
We cannot give our consent to the doctrine relied upon by the trial judge in support of the first ground of
dismissal of the complaint. While it is true that the defendant in an action of this kind who sets up a claim
of prescriptive title to lands within the boundary lines of the lands of another, must establish the precise
location and extent of the lands claimed by him before judgment can be entered declaring him to be
entitled to retain possession of these lands by virtue of his prescriptive title; it is not necessary for the
plaintiff to establish the precise location and extent of the lands claimed or occupied by the defendant, in
order to establish his right to a judgment for possession, provided he shows that the defendant is
unlawfully in possession of any part of the tract included in his title deeds. Proof as to the location and
extent of the lands occupied by a trespasser in such cases might well be vital importance upon a question
as to the damages which should be allowed the plaintiff, but it is by no means essential to maintain a
judgment for possession. Plaintiff may not know, and may have no means of knowing, the precise
location and extent of the land claimed by the defendant; but if he establishes title to the entire tract in
himself, and the defendant appears to be in possession of any part of the tract, and fails to establish
prescriptive title thereto, it matters not what the location or extent of the part so occupied may be, the
sheriff can levy execution on a judgment for possession in favor of the plaintiff, by expelling the
defendant from any part of the property of the plaintiff upon which he may be found.
From what has been said it is clear that if the judgment of dismissal should be sustained, it must be
sustained on the second ground relied upon by the trial judge, and it becomes necessary for us to consider
and decide the questions raised by the plaintiff's claim of titled based on a deed of gift of
the hacienda executed in due form in a public document, it not appearing that the donee had accepted the
donation in the original deed nor in a separate public instrument, and that the donor had been notified of
such acceptance in conformity with the provisions of article 633 of the Civil Code.
The provisions of that article are as follows:
In order that a gift of a real property may be valid it shall be made in a public instrument, stating
therein in detail the property bestowed as a gift and the amount of the charges, which the donee
must satisfy.
The acceptance may be made in the same instrument bestowing the gift or in a different one; but
it shall produce no effect if not made during the life of the donor.
If made in a different instrument the acceptance shall be communicated to the donor in an
authentic manner, and this proceeding shall be recorded in both instruments.
It is contended on the one hand, that the provisions of this article touching the acceptance of donations of
real estate in a public document set forth merely the form of the probative documents by which the
acceptance must be evidenced so as to prejudice the interests of third persons; and that a mere failure to
comply with the prescribed formalities in this regard does not affect the validity of the donation if the fact
of acceptance and notice can be established by other competent evidence. On the other hand, it is said that
under the very terms of the statute the validity of a gift of real estate is made to depend on a strict
compliance with the formalities prescribed in the code as indispensable requisites for the execution of a
gift of real estate, the purpose of the legislator being to deny the power of a donor to make a valid gift
binding upon himself or any one else in any other form than that indicated in the Code.
In the case of Velasquez vs. Biala (18 Phil. Rep., 231), this court, construing the provisions of article 633
of the Code, and citing confirmatory comment by Scaevola and Manresa, held that:
In order that a gift of real property may be valid in law, including dowry and other gifts propter
nuptias consisting of realty, it is absolutely necessary that it be made in a public instrument duly
executed with all the prescribed formalities, and such a document is required, not only as regards
third persons, but as between the parties themselves.
We are of opinion, and so hold, that like reasoning applied to the construction and interpretation of the
various articles of the Code dealing with the acceptance of donations of real estate, more especially
articles 632, 629, and 630, leads to the conclusion that it is an indispensable requisite to the perfection and
validity of a gift of real estate that the gift be accepted in a public document; and that the title to real
estate does not pass from the donor to the donee by virtue of a deed of gift, until and unless the gift is
accepted in a public document and the donor duly notified of its acceptance.
Articles 623, 629, and 630 are as follows:
ART. 623. A gift is consummated upon the donor having knowledge of its acceptance by the
donee.
ART. 629. A gift does not bind the donor nor produce any effect until accepted.
ART. 630. The donee must, under pain of nullity, accept the gift in person or through a person
authorized by a special power for the purpose or having a general or sufficient power of attorney.
The following citations from Manresa's commentaries on articles 623, 629, 630, 631, 632, and 633 of the
Civil Code quite clearly set forth the accepted doctrine of the Spanish authorities as to the meaning and
effect of these code provisions:
The acceptance is therefore the essence of donations and has always been so; yet even the Roman
people, so fond of legal formalism, have conceded tacit acceptance based on the fact that when
the donee took possession of the property donated he clearly set forth his acceptance of the
donation.
The French Code, following the doctrine of the ordinance of 1731, required express acceptance;
and this principle, which predominates in the majority of the Codes, has been brought into our
own, as we shall presently see.
We knew from article 618 that the essence of a donation is that it be accepted. Article 623 says
something more as, in accordance with same, a donation is not consummated until the very
moment when the donor perceives the donee's acceptance.
Article 623 supposes of course that the acceptance may be made subsequently to the offer, or, let
us say, the donation. This admitted, nothing is more natural than to require that the donor be
informed in order that he may know that the favor he proposes to confer is accepted. But, at what
moment is the donation perfected? Article 623 says that it is when the donor first learns of the
acceptance. The perfection of the donation supposes a demandable juridical relation; the donor
cannot then repent; and he can be compelled to fulfill his offer, to deliver what he wished to
donate. But there is another article in the same Code, under the same title, No. 629, which
apparently at least is in contradiction with No. 623. It provides: 'The donation does not bind the
donor nor produce any other effect until accepted.' Upon our examination of article 629 we shall
endeavor to explain this apparent contradiction or make known the idea that should prevail. (Vol.
5, 2d ed., p. 86.)
Acceptance assumes exceptional importance in donations. Articles 623, 625, 627, and 629 to 633
treat of it. We have seen what persons may accept donations. The present article refers to the
necessity and effects of acceptance.
The provision of article 629 is clear. As Navarro Amandi says, if there were no other provision
except this one, the donor would be bound and, from the moment the donation was accepted,
could not at will revoke it. But the provision of article 623 is also clear, according to which the
donor can at will revoke his donation even after its acceptance.
Relation between article 623 and 629. Commentators agree that these articles, 623 and 629,
are contradictory. At first sight they do so appear to be; but they are capable of harmony. What
solution ought to be adopted? In our judgment, there is no possible doubt. The solution given by
article 623 is the one most in accord with reason, with the other articles that treat of donations,
and with the rules governing contracts. It is most in accord with reason because an acceptance,
not known to the donor, lacks finality, though it has great value as it is essential in donations; but
the possibility of its remaining unknown to the donor ought not to exist. Donations do not
produce effects unless they have been accepted; moreover, the donor can revoke them theretofore.
But, until when has he this power? If it be admitted that it is up to the time when the acceptance is
still unknown to the donor, the latter is kept in such a state of uncertainty that even in a case of
necessity he cannot dispose of the donation, because he does not know whether there has been
acceptance, nor, for this reason, whether his disposal of the donation would be efficacious. No
one would wish therefore to contract with him. In order that the donor may be sure in the
excercise of his own right, it is necessary to fix a definite time, before which he knows that he
may dispose of his property, after which, he likewise knows that what he wished to donate no
longer belongs to him. This time must be necessarily that when the donor learns of the acceptance
of his donation. This conclusion is also supported by article 631. Notice of acceptance to the
donor is obligatory. But article 633, the acceptance must be notified in an authentic manner; and
by article 632, according to which verbal donations of personal property are valid only when the
delivery and the receipt of the thing are simultaneous. This conclusion is also confirmed by article
1262, relative to contracts: "Consent," it says, is shown by the concurrence of the offer and the
acceptance of the thing and the consideration; these are to constitute the contract. The acceptance
made by latter does not bind the person making the offer except from the time it came to his
knowledge. (Vol. 5, 2d ed., pp. 100-102.)
Pursuant to statutes formerly in force, donations followed the rules to contracts. It cannot be
affirmed with certainty that a public instrument would necessarily be required, except for the
purposes of registration in the registry of property. The sole formality consisted in the insinuation,
and this was an indispensable requisite, both with regard to real and personal property, whenever
the value of the gift exceed 500 maravedis in gold. (Vol. 5 2d ed., pp. 108, 109.)
Period during which the acceptance must be made. Article 633 adds, finally, that the
acceptance must be made during the life of the donor. This proves that it may be delayed more or
less but that, if not made before the donor's death, it is not efficacious. What shall we say if the
donor dies after the acceptance but before the notice? It cannot be claimed that a dead man can be
notified. On the other hand, article 633 does not say that notice shall be given the donor or his
heirs, but necessarily the donor.
What shall we deduce from all that? What we have already stated in the commentary made on
article 629. When the acceptance is made after the offer in a separate instrument, two moments
are to be considered in it: One, with respect to the donee, which is that moment when he makes
his acceptance which, as to himself, is certain; the other, with respect to the donor, which is the
moment when he learns of the acceptance, as, prior to that time, he knew nothing of it, had no
evidence of it, and, for himself, no acceptance even existed. Therefore if the donor dies before
notice is given, although after the donation has been accepted, the donation is not efficacious, has
not been perfected, does not obligate the donor's heirs there has not been a concurrence of the
two wills; death has separated them forever. (Vol. 5 2d ed., pp. 114, 115.)
Is implied acceptance of the gift admissible? The law does not say so positively but it must be
deduced that the acceptance, as a general rule, must be express. In gifts of real property, when the
delivery and the receipt are simultaneous, article 632 presumes of course that there is acceptance;
but, with this exception, the same article 632 and article 633 prove that the acceptance must be
express, inasmuch as it must be set forth in writing.
A donates in writing a certain sum to B who is in a distant place. B collects the sum in the place
where he is, and disposes of it; but his acceptance does not appear in writing. One year afterwards,
A revokes the donation or his creditors cause him to be declared in bankruptcy and claim that the
donation be made ineffective. The revocation or the claim is admissible: there was no true
acceptance; the gift did not come into existence. It will be said that this solution is absurd, that
common sense tells us that the taking possession of the property evidences the donee's will to
accept. That is all true, but the law so requires: Dura lex sed lex. Certain it is that a simple letter,
which, on the other hand, might very naturally have been expected and was even demanded by
courtesy, would have avoided all question; but the letter was not written, and legally there is
neither donation nor acceptance.
Our Code has not ventured to discard the doctrine admitted by other Codes. For our part, we
confess that we do not look with favor upon the solution that has prevailed. The law ought always
to admit the dictates of reason, to legislate against them is dangerous. Well and good that the fact
of the taking of possession be placed in the knowledge of the donor, that natural and right. But,
knowing that the donee received the property, to be able to claim that there was no acceptance, is
to carry formalism to such an extreme that the spirit of modern laws does not consent.
Our prior legislation, as well as the Roman Laws, admitted implied acceptance. According to the
decision of October 1, 1888, the payment of the taxes levied on the bestowed property, the
possession of the latter with the muniments of title drawn up in behalf of the donee, and the
celebration of messes, imposed upon the donee, as an encumbrance, were all acts that accredited
acceptance. Implied acceptance was also admitted in the provinces governed under special laws.
The effects with respect to the possession of real property, which mitigate in part the rigor of the
doctrine above laid down, are to be kept in mind. (Vol. 5, 2d ed., pp. 118, 119.)
In setting forth at length the foregoing citation from Manresa we must not be understood as accepting at
this time all he says upon this subject. They have been inserted here merely because, together with the
citations in the former opinion (Velazquez vs. Biala, supra) they quite clearly indicate the accepted
Spanish doctrine as to the necessity for acceptance of donations of real estate in the form indicated in
article 633 of the Code, and confirm our ruling that title to real estate does not pass from the donor to the
donee by virtue of a deed of gift until and unless it has been accepted in a public instrument and the donor
duly notified thereof.
We conclude that the judgment of dismissal entered in the court below should be affirmed on the ground
that plaintiff failed to establish title in himself to the hacienda upon which he could maintain an action of
ejectment.
Since this appeal was taken plaintiff, evidently under advice of counsel, executed a formal acceptance of
the donation of the hacienda in a public document and has submitted that instrument, together with proof
of notice of acceptance to his father, as the basis of a motion for a new trial on the ground of newly
discovered evidence. It is hardly necessary to say that evidence of the execution of his acceptance of the
donation, after the trial closed, cannot be treated as newly discovered evidence as to the fact of acceptance
which it was incumbent upon him to establish during the trial. From what has been said already it is clear
that plaintiff did not acquire title to the hacienda until the date of the execution of the public document
evidencing his acceptance of the donation and notice thereof to the donor. So that, whatever rights he may
have to institute and maintain a new action of ejectment in reliance upon his claim that he has acquired
title to the hacienda since the date of the dismissal of this action, it is clear that the present action was
properly dismissed on the ground of failure of proof of title in the plaintiff at the time when the action was
instituted and later when judgment of dismissal was entered by the trial court.
Perhaps we should indicate that in our disposition of this appeal, we have wholly disregarded the oral
evidence of the plaintiff as to an alleged deed of gift of the hacienda executed many years prior to the
date of the execution of the deed of gift actually in the record. He says that the original deed executed in
1887 was destroyed by fire, and that the deed now in the record, dated 1913, was executed with a view to
the perfection of his title deeds, and to remove all doubts as to his rights in the premises. The trial judge
did not accept this secondary evidence as sufficient to establish the execution and loss of this alleged deed
of gift; and we think that in view of the failure of the plaintiff to perfect the gift evidenced by the deed of
1913 until this case was brought here on appeal, it may fairly be assumed that if a deed of gift was in fact
executed in 1897, it was as defective for the purpose of conveying title to the hacienda as was the deed of
1913; and certain it is that the oral evidence of the plaintiff as to its execution is wholly insufficient to
maintain a finding that such a deed was executed and accepted with notice to the donor of the acceptance
in the manner and form prescribed in the Code. Plaintiff relied wholly upon his claim of ownership of
the hacienda in support of his right to maintain this action, and having failed to establish this claim of
ownership under either deed of gift, dismissal of the action was inevitable.
Twenty days hereafter let judgment be entered affirming the judgment of dismissal in the court below,
with costs of this instance against the appellant, and ten days thereafter let the record be returned to the
court wherein it originated. So ordered.
Arellano, C.J., Torres, Araullo, Street, Malcolm, Avancea and Fisher, JJ., concur.
Johnson, J., took no part.









95 Daily Journal D.A.R. 8741
BANK MELLI IRAN; Bank Mellat, Plaintiffs-Appellants,
v.
Shams PAHLAVI, aka H.I.H. Princess Shams Pahlavi, Defendant-Appellee.
No. 94-55292.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 6, 1995.
Decided June 29, 1995.
Steven D. Atkinson, Atkinson, Andelson, Loya, Ruud & Romo, Cerritos, CA, for plaintiffs-
appellants.
Ralph Zarefsky, Baker & Hostetler, Los Angeles, CA, for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges.
FERNANDEZ, Circuit Judge:
1
Bank Melli Iran and Bank Mellat (the Banks) filed this action for the purpose of enforcing
certain judgments, which they had obtained against Shams Pahlavi in the tribunals of Iran.
She is a resident of California and is the sister of the former Shah of Iran. The district court
determined that at the times that the judgments were obtained Pahlavi could not have
obtained due process of law in the courts of Iran. It, therefore, granted summary judgment in
her favor. The Banks appeal and we affirm.BACKGROUND
2
In January of 1979, the Shah of Iran fled the country in the midst of the series of events that
ultimately resulted in the creation of the Islamic Republic of Iran. Prior to that time, Pahlavi,
the Shah's older sister, had signed a number of promissory notes.
3
The Banks, which were the holders of those notes and which are at the very least closely
associated with the government, brought collection actions against Pahlavi in the courts of
Iran. They served her by publication and in 1982 and 1986 obtained default judgments in the
total amount of $32,000,000. They now seek to enforce those judgments pursuant to the
Algerian Accords
1
and pursuant to the California Uniform Foreign Money-Judgments
Recognition Act. Cal.Civ.Proc.Code Secs. 1713-1713.8 ("Foreign Money-Judgments Act" or
the "Act").
4
Pahlavi filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) to
which she attached a number of documents containing extrinsic evidence to support her
assertion that the judgments were rendered without due process of law. At a hearing on
March 29, 1993, the district court recognized that this was a speaking motion and converted
it to a motion for summary judgment. It then gave the parties a number of months to submit
further evidence and on January 4, 1994 held the final hearing at which it granted summary
judgment for Pahlavi. It is from that judgment that the Banks have now appealed.
JURISDICTION AND STANDARD OF REVIEW
5
The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331. We have jurisdiction
pursuant to 28 U.S.C. Sec. 1291.
6
We review the district court's interpretation of treaties and related executive orders de novo.
See United States v. Washington, 969 F.2d 752, 754-55 (9th Cir.1992), cert. denied, --- U.S.
----, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993). Executive agreements, like the Algerian
Accords, are interpreted in the same manner as treaties and reviewed by the same standard.
See Air Canada v. United States Dep't of Transp., 843 F.2d 1483, 1486 (D.C.Cir.1988); see
also Boeing Co., 771 F.2d at 1283-84.
7
We review grants of summary judgment de novo. See Grove v. Mead Sch. Dist. No.
354, 753 F.2d 1528, 1533 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70
(1985).
DISCUSSION
8
A. Summary Judgment Issues.
9
Once the district court decided to convert Pahlavi's motion from a motion to dismiss to a
motion for summary judgment, it was required to give the parties a "reasonable opportunity
to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). In so
doing, a district court need only apprise the parties that it will look beyond the pleadings to
extrinsic evidence and give them an opportunity to supplement the record. See Barron v.
Reich, 13 F.3d 1370, 1377 (9th Cir.1994); Grove, 753 F.2d at 1532-33. The Banks complain
that they did not have sufficient notice about the issues that the district court intended to
consider. However, our review of the record makes it very clear that the Banks at the very
least knew that the district court questioned whether due process was available to Pahlavi in
the tribunals of Iran during the period from 1982 through 1986, that from what it had seen it
doubted that due process was available, and that the parties should submit further
information on that subject to it. There can be no doubt that the Banks knew that. Because
that is the issue that the district court resolved in granting summary judgment, the Banks
were neither misled nor subject to an erroneous decision in that respect.
10
The Banks also complain that they were improperly assigned the burden of persuasion. We
agree that in reviewing a request for summary judgment it can be important to decide where
the burden of persuasion lies. Here the Banks sought to enforce the judgment of the Iranian
courts, and they had the burden of persuading the district court that they had judgments. See,
e.g., Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1121 (9th Cir.1994), cert. denied, --- U.S.
----, 115 S.Ct. 734, 130 L.Ed.2d 637 (1995). However, this case largely turns on the issue of
whether the judgments were obtained in a manner that comported with due process. The
question, then, is whether the Banks must demonstrate that the judgments were so obtained
or whether Pahlavi must demonstrate that they were not or could not have been.
11
In Hilton v. Guyot, 159 U.S. 113, 205-06, 16 S.Ct. 139, 159, 40 L.Ed. 95 (1895), the leading
common law foreign money judgment case, the Supreme Court indicated that:
12
When an action is brought in a court of this country, by a citizen of a foreign country against
one of our own citizens, to recover a sum of money adjudged by a court of that country to be
due from the defendant to the plaintiff, and the foreign judgment appears to have been
rendered by a competent court, having jurisdiction of the cause and of the parties, and upon
due allegations and proofs, and opportunity to defend against them, and its proceedings are
according to the course of a civilized jurisprudence, and are stated in a clear and formal
record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged....
13
That could be seen as a suggestion that the due process issue is part of the case which
must be established by a plaintiff. However, the Court was not actually discussing burdens of
persuasion, and a strong argument can be made that a claimed lack of due process should
be treated as a defense. So doing would be consistent with the view of a leading
commentary that " '[t]here is much sense in making the party who claims the unusual
occurrence plead it affirmatively so that the usual assumptions may be indulged in as a
matter of course wherever there is no such claim.' " 5 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure Sec. 1271, at 445 (1990) (citation omitted).
14
A number of courts have so treated it. See Banque Libanaise Pour Le Commerce v.
Khreich,915 F.2d 1000, 1005 (5th Cir.1990) ("Section five of the Texas Recognition Act
provides that a 'foreign country judgment need not be recognized' if certain conditions exist.
These conditions are phrased as affirmative defenses. Therefore, the burden of non-
recognition rested with Khreich.") (citation omitted); McCord v. Jet Spray Int'l Corp., 874
F.Supp. 436, 440 (D.Mass 1994) (two exceptions to the inclusive nature of foreign judgments
were raised, and the court determined that the "act specifically limits the defenses that may
be raised in an action to enforce a foreign judgment."); Fiske, Emery & Assocs. v. Ajello, 577
A.2d 1139, 1141-43, 41 Conn.Sup. 376, 378-381 (Conn.Super.Ct.1989) (the court noted that
under the Foreign Money-Judgments Act, a foreign judgment will be recognized unless "one
of the grounds for nonrecognition of the foreign judgment" is made out; the nonrecognition
conditions were characterized as "defense[s]"). Contra, Ackermann v. Levine, 788 F.2d 830,
842 n. 12 (2d Cir.1986) (plaintiff sought enforcement of a foreign judgment under the Act and
had to show prima facie that there was subject matter jurisdiction, personal jurisdiction, and
that there were regular proceedings conducted by tribunals with procedures that are
compatible with due process).
15
While the issue is extremely interesting, we need not resolve it at this time because, as we
will show, whether Pahlavi had to put in sufficient evidence to sustain a defense or whether
she had only to point to weaknesses in the Banks' case, she carried her burden. See Celotex
v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (Brennan, J.,
dissenting) (heavier burden when moving party has burden of persuasion) and Houghton v.
South, 965 F.2d 1532, 1536 (9th Cir.1992) (same). As the district court pointed out, Pahlavi's
position was so persuasive that the Banks were going to have to point to something that
refuted it. That was neither improper nor unfair.
16
B. The Merits.
17
Pahlavi's major bulwark against the Banks' attack is her assertion that the judgments cannot
be enforced because she could not have had due process in Iran during the period that
those judgments were obtained against her. That simple but crucial fact, she says, precludes
enforcement of the Banks' judgments on any theory.
2
We agree with her premise, and, on
the record of this case, we agree with the district court's conclusion as well.
18
It has long been the law of the United States that a foreign judgment cannot be enforced if it
was obtained in a manner that did not accord with the basics of due process. See Hilton, 159
U.S. at 205-06, 16 S.Ct. at 159. As the Restatement of the Foreign Relations Law of the
United States succinctly puts it: "A court in the United States may not recognize a judgment
of a court of a foreign state if: (a) the judgment was rendered under a judicial system that
does not provide impartial tribunals or procedures compatible with due process of law...."
Sec. 482(1)(a) (1987).
19
We are aware of no deviation from that principle. In fact, as we have already shown, it was
expressly incorporated into the Foreign Money-Judgments Act. Cal.Civ.Proc.Code Sec.
1713.4; see also Julen v. Larson, 25 Cal.App.3d 325, 327-28, 101 Cal.Rptr. 796, 798 (1972);
cf. Bank of Montreal v. Kough, 612 F.2d 467, 470-71 (9th Cir.1980) (the taking of jurisdiction
must comport with due process). It can hardly be gainsaid that enforcement will not be
permitted under California law if due process was lacking when the foreign judgment was
obtained. Faced with that ineluctable proposition, the Banks argue that the Algerian Accords
have somehow elided the due process requirement from the law of the United States as far
as Pahlavi is concerned. With that we cannot agree.
20
The Algerian Accords do provide that Iran can bring actions to recover any of its assets from
the family of the former Shah. See Declaration of the Government of the Democratic
andPopular Republic, Point IV, para. 12, reprinted in Dep't St. Bull., Jan. 19, 1981, at 3
("General Declaration").
3
They also provide that in litigation against the Shah's family "the
claims of Iran should not be considered legally barred either by sovereign immunity principles
or by the act of state doctrine and that Iranian decrees and judgments relating to such assets
should be enforced by such courts in accordance with United States law." Id. at p 14. It is
upon this language that the Banks rest their claim that the United States courts cannot
consider whether the judgments were obtained in accordance with due process. That is a
foundation that crumbles under the weight the Banks seek to place upon it.
21
It is true that "[t]he clear import of treaty language controls unless 'application of the words of
the treaty according to their obvious meaning effects a result inconsistent with the intent or
expectations of its signatories.' " Sumitomo Shoji Amer., Inc. v. Avagliano, 457 U.S. 176, 180,
102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982) (citation omitted). Where the Banks' argument
goes awry is in the suggestion that the language in question removes due process
considerations from the purview of the United States Courts. In the first place, it is notable
that the Accords eliminate certain defenses--sovereign immunity and the act of state
doctrine--but otherwise provide that enforcement of judgments shall be "in accordance with
United States law." That law, of course, includes the due process requirement which we
have already delineated.
22
Secondly, when Warren Christopher, then the former Deputy Secretary of State and one of
the chief architects of the Algerian Accords, addressed the concerned members of the
Committee on Foreign Affairs of the House of Representatives in 1981, he assured them that
"Iran's claims to the property of the Shah and his family will have to be adjudicated in U.S.
courts in full accordance with due process of law." Iran's Seizure of the United States
Embassy: Hearings before the House of Representatives Committee on Foreign Affairs, 97th
Cong., 1st Sess. 149 (1981). It would be most surprising if what he really meant was that due
process would be applicable if the initial action were brought in the courts of the United
States, a rather obvious point, but that those same courts would be expected to enforce any
judgment obtained in Iran, regardless of due process considerations. Absent strong evidence
to the contrary--evidence not present in this record--the only reasonable inference is that the
United States intended that enforcement "in accordance with United States law" include the
due process requirements that are usually demanded by our courts when they review foreign
judgments.
23
Finally, a construction of the Algerian Accords that permitted the taking of assets from a
resident of this country by means of a judgment obtained without due process of law would
raise grave questions about the enforceability of that part of the Accords. That question
would be lurking in the case were we to accept the position that the Banks argue for. See
Boeing Co., 771 F.2d at 1284 (regarding lurking constitutional issues in the Accords); cf.
Dames & Moore v. Regan, 453 U.S. 654, 688-89, 101 S.Ct. 2972, 2991, 69 L.Ed.2d 918
(1981) (court upholds Algerian Accords but notes that enforcement may leave residual
constitutional issues, at least as against the United States Government.) We see no reason
to stretch the language of the Accords and thereby create those questions because we have
no reason to think that the Accords were intended to change the law of this country in that
backhanded a fashion. Thus, we hold that attempts to enforce judgments under the Algerian
Accords are not exempt from due process defenses.
4

24
Having so held, we are left with the question of whether the district court properly granted
Pahlavi summary judgment on the due process issue. That is, did she show that she could
not get due process in Iran? On this record, the answer is yes, as a precis of the evidence
will show.
25
Pahlavi attached various reports to her motion to dismiss. Those included consular
information sheets which gave travel warnings from 1981 through 1993 and noted that anti-
American sentiment could make it dangerous to travel in Iran. In particular, the State
Department noted that "U.S./Iranian dual nationals have often had their U.S. passports
confiscated upon arrival and have been denied permission to depart the country documented
as U.S. citizens." While those advisories apply to American nationals, there is no reason to
believe that the Shah's sister would have fared any better. Further, a 1991 report on
terrorism was attached. That report stated that even then Iran was a continuing state
sponsor of terrorism. The report recounted the assassination of a former Iranian prime
minister and his aide in Paris, France. See Patterns of Global Terrorism: 1991, Dep't of State
Bull., April 1992 at 30. Again, one would anticipate that the Shah's sister would encounter
great danger should she try to enter Iran.
26
In addition, other materials from the Department of State were obtained, pursuant to the
request of the district court.
5
One of those documents is the portion of the Country Report on
Human Rights Practices for 1982 regarding Iran. See Report by Department of State to
Committee on Foreign Relations U.S. Senate and Committee on Foreign Relations U.S.
House of Representatives, 98th Cong.2d Sess. 1141 (Joint Comm. Print 1983).
6
That report
indicates that trials are rarely held in public, that they are highly politicized, and that the
regime does not believe in the independence of the judiciary. Id. See also Country Report for
1986 at 1159 (report detailing denials of fair public trial and discussing the purchase of
verdicts in civil trials); Country Report for 1983 at 1259 (same); Country Report for 1984 at
1238 (same); Country Report for 1985 at 1237 (same). In addition, a 1990 declaration from
Laurence Pope, a State Department official, was submitted. Pope declared that under the
post-Shah regime "judges are subject to continuing scrutiny and threat of sanction and
cannot be expected to be completely impartial toward U.S. citizens," and that "U.S. claimants
can have little reasonable expectation of justice." The declaration also pointed out the fact
that attorneys in Iran "have been officially discouraged from representing politically
undesirable interests," and, "[w]itnesses to events living in Iran ... are likely to be subject to
the same risks as lawyers." Those observations concentrated on the effect upon American
citizens, but it can hardly be doubted that they would apply equally to Pahlavi. Further, the
Country Report for 1986 suggested that people like Pahlavi (those with close ties to the
Shah's regime) could not return to Iran without reprisals. See page 1163. That report also
indicated that the revolutionary courts could take over cases that were formerly within civil
court jurisdiction and could overturn the decisions of civil courts. See page 1159. Also,
restraints on arbitrary actions of the revolutionary courts had been greatly weakened. Id.
27
Pahlavi did not put in a declaration which specifically stated that she would be treated badly
by the regime. Her failure to present that more specific evidence does weaken her position
somewhat. Nevertheless, a common sense reading of the evidence indicates that if it were
the only evidence placed before the trier of fact a verdict would be directed in her favor on
the ground that she could not possibly have obtained a fair hearing before the courts of Iran
had she attempted to fight the Banks' claims against her.
28
That conclusion is further buttressed by decisions which recognize that in the early to mid-
1980s Americans could not get a fair trial in Iran. See McDonnell Douglas Corp. v. Islamic
Rep. of Iran, 758 F.2d 341, 346 (8th Cir.) ("We thus take judicial notice that litigation of the
dispute in the courts of Iran would, at the present time, be so gravely difficult and
inconvenient that McDonnell Douglas would for all practical purposes be deprived of its day
in court."), cert. denied, 474 U.S. 948, 106 S.Ct. 347, 88 L.Ed.2d 294 (1985); Rockwell Int'l.
Sys., Inc. v. Citibank, N.A., 719 F.2d 583, 587-88 (2d Cir.1983) ("Neither [party] argues that
the post-revolutionary Iranian judicial system is capable of affording an adequate remedy;
courts that have passed on this contention have consistently rejected it."); Harris Corp. v.
National Iranian Radio and Television, 691 F.2d 1344, 1357 (11th Cir.1982) ("It is clear that
the Islamic regime now governing Iran has shown a deep hostility toward the United States
and its citizens, thus making effective access to the Iranian courts unlikely."). There is no
reason to think that Pahlavi would have had better access to justice. After all, much of the
hostility to United States citizens stemmed from this country's connection to the Shah's
regime, and it is hardly necessary to say that Pahlavi's connection was, if anything, closer.
29
Of course, had the Banks put in any evidence of substance, summary judgment might have
been averted. But the Banks' response to Pahlavi's evidence was information and belief
declarations from their counsel. Those were entitled to no weight because the declarant did
not have personal knowledge. See Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir.1989);
Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525,
1529 (9th Cir.1991), aff'd, --- U.S. ----, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); see also
Garcia-Franco v. INS, 748 F.2d 518, 519 (9th Cir.1984) (Duniway, J., concurring and
dissenting) ("The only affidavit filed was one by [the] attorney.... In it, he repeats what he
says in his motion, on information and belief. This was, on its face, a totally insufficient
showing. It does not raise any issue....").
30
In addition, even if the material had been in proper form, the matters addressed by the
declaration and the exhibits did not directly come to grips with the question placed at issue:
whether Pahlavi could receive a fair trial in Iran. Instead, the information submitted merely
indicated that service was made by publication, that Pahlavi should have received notice,
and that Iranian experts had considered the claims against Pahlavi. Portions of the written
law of Iran were also included.
31
The Banks did submit information to the effect that Pahlavi had argued in an earlier unrelated
action that a claim against her would more properly be tried in Iran. Perhaps in so doing the
Banks hoped for a kind of judicial estoppel, which would preclude Pahlavi from taking a
different position in this case. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)
(principles of judicial estoppel), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d
1078 (1991). At any rate, a review of that information reveals that even in the former
proceeding Pahlavi had complained that the Iranian government "has seen fit to nullify
fundamental fairness and due process." Her actual argument was that the case should be
dismissed on forum non conveniens grounds because Iran would be the proper place for trial.
She then added that the fact that Iran would not give her a fair trial should not allow it to
argue against her position that it was the most convenient forum. The result, therefore, would
have been that Iran could not effectively take action against her here or there. That is not
truly inconsistent with her present position.
32
In short, the Banks failed to show that there was a material issue of fact on the question of
whether Pahlavi could receive a trial in Iran that would be characterized by a "system of
jurisprudence likely to secure an impartial administration of justice." Hilton, 159 U.S. at 202,
16 S.Ct. at 158. Thus, summary judgment was properly granted in her favor.
CONCLUSION
33
Nations are not inexorably bound to enforce judgments obtained in each other's courts.
However, our courts will enforce foreign judgments that arise out of proceedings which
comport with basic principles of due process. Neither the Foreign Money-Judgments Act nor
the Algerian Accords nor any case interpreting them deviates from that principle.
34
The evidence in this case indicated that Pahlavi could not expect fair treatment from the
courts of Iran, could not personally appear before those courts, could not obtain proper legal
representation in Iran, and could not even obtain local witnesses on her behalf. Those are
not mere niceties of American jurisprudence. Cf. Ma v. Continental Bank N.A., 905 F.2d
1073, 1076 (7th Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 414 (1990)
(citing Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446 (1928)). They are
ingredients of "civilized jurisprudence." Hilton, 159 U.S. at 205, 16 S.Ct. at 159. They are
ingredients of basic due process.
35
Therefore, because Pahlavi would have been entitled to a directed verdict had this case
gone to trial on this record, the conclusion that she was entitled to summary judgment was
apodictic.
36
AFFIRMED.
1
See our discussion of the background and implementation of the Accords in Islamic Rep. of Iran
v. Boeing Co., 771 F.2d 1279, 1282-84 (9th Cir.1985), cert. dismissed, 479 U.S. 957, 107 S.Ct.
450, 93 L.Ed.2d 397 (1986)
2
If that bulwark holds she need not fall back upon lesser ones, for example, lack of personal
jurisdiction and statute of limitations bars. Of course, lack of personal jurisdiction, itself, has a
due process aspect to it
3
That includes its instrumentalities. See General Declaration, art. VII, para. 3, at 4. For purposes
of this opinion, we will assume, without deciding, that the Banks are instrumentalities of Iran.
Although they have not submitted evidence to that effect, other courts have said that they are.
See New England Merchants Nat'l Bank v. Iran Power Generation & Transmission Co., 646
F.2d 779, 780, 791 (2d Cir.1981); Itek Corp. v. First Nat'l Bank of Boston, 511 F.Supp. 1341,
1342 (D.Mass.1981), vacated, 704 F.2d 1 (1st Cir.1983)
4
Pahlavi also insists that the Algerian Accords are not self-executing. No doubt that is true. See
Boeing Co., 771 F.2d at 1283. However, the Accords have been implemented by executive
orders. See id. at 1284; Itek Corp., 704 F.2d at 4; see also 31 C.F.R. Sec. 535.217 (1994)
(codifying para. 12 of Point IV of the General Declaration and specifically referring to the
blocking of Pahlavi's assets in the United States); 31 C.F.R. Sec. 535.301 (1994) (codifying
Article VII, para. 3 of the General Declaration, defining what Iran and Iranian entity includes)
5
The Banks did not object to that. As Pahlavi notes, any objection to the consideration of those
materials has been waived. See Faulkner v. Federation of Preschool & Community Educ. Ctrs.,
Inc., 564 F.2d 327, 328 (9th Cir.1977) (per curiam)
6


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32636 March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J .:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of
Judge of First Instance Tuason denying the probate of the document alleged to by the last will
and testament of the deceased. Appellee is not authorized to carry on this appeal. We think,
however, that the appellant, who appears to have been the moving party in these proceedings,
was a "person interested in the allowance or disallowance of a will by a Court of First Instance,"
and so should be permitted to appeal to the Supreme Court from the disallowance of the will
(Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West
Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the
Director of the National Library. But this was far from a compliance with the law. The laws of a
foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are
not authorized to take American Union. Such laws must be proved as facts. (In re Estate of
Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
was printed or published under the authority of the State of West Virginia, as provided in section
300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate
of the officer having charge of the original, under the sale of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was
executed.
In addition, the due execution of the will was not established. The only evidence on this point is
to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that
the will was acknowledged by the testator in the presence of two competent witnesses, of that
these witnesses subscribed the will in the presence of the testator and of each other as the law
of West Virginia seems to require. On the supposition that the witnesses to the will reside
without the Philippine Islands, it would then the duty of the petitioner to prove execution by
some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not establish this fact consisted of the recitals in the CATHY will and the testimony
of the petitioner. Also in beginning administration proceedings orginally in the Philippine Islands,
the petitioner violated his own theory by attempting to have the principal administration in the
Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of the evidence the documents attached to
the petition. One of these documents discloses that a paper writing purporting to be the was
presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia,
in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the
subscribing witnesses thereto , and ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West
Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate
of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for
the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings
in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the principal administration and West Virginia
the ancillary administration. However this may be, no attempt has been made to comply with
Civil Procedure, for no hearing on the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested. There is no showing that the
deceased left any property at any place other than the Philippine Islands and no contention that
he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward
Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed


.R. No. L-21076, Wong Woo Yiu v. Vivo et al., 13 SCRA 552
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 31, 1965
G.R. No. L-21076
WONG WOO YIU alias NG YAO, petitioner-appellee,
vs.
HON. MARTINIANO P. VIVO, ETC., ET AL., respondents-appellants.
Platon A. Baysa for petitioner-appellee.
Office of the Solicitor General for respondents-appellants.
BAUTISTA ANGELO, J .:
On June 28, 1961, the Board of Special Inquiry No. 3 rendered a decision finding petitioner to be legally
married to Perfecto Blas and admitting her into the country as a non-quota immigrant. This decision was
affirmed by the Board of Commissioners on July 12, 1961 of which petitioner was duly informed in a
letter sent on the same date by the Secretary of the Board. However, on June 28, 1962, the same Board of
Commissioners, but composed entirely of a new set of members, rendered a new decision reversing that
of the Board of Special Inquiry No. 3 and ordering petitioner to be excluded from the country. On August
9, 1962, petitioner filed a motion for new trial requesting an opportunity to clarify certain points taken in
the decision, but the same was denied for lack of merit. Whereupon, on September 14, 1962, petitioner
initiated the instant petition for mandamus with preliminary injunction before the Court of First Instance
of Manila which incidentally was considered by it as a petition forcertiorari.
In due time, respondents filed their answer, and, after the parties had submitted a written stipulation of
facts, attaching thereto some documentary evidence, the court a quo rendered a decision granting in, toto
the relief prayed for. Thus, the court declared valid the decision rendered by the Board of Special Inquiry
No. 3 while it restrained respondents from excluding petitioner from the country. Respondents interposed
the present appeal.
It appears that in the proceedings held before the Board of Special Inquiry sometime in June, 1961,
petitioner declared that she came to the Philippines in 1961 for the first time to join her husband Perfecto
Blas to whom she was married in Chingkang, China on January 15, 1929; that they had several children
all of whom are not in the Philippines; that their marriage was celebrated by one Chua Tio, a village
leader; that on June 28, 1961 the Board of Special Inquiry No. 3 rendered a decision finding, among
others, that petitioner is legally married to Perfecto Blas, a Filipino Citizen, and admitted her into the
country as a non-quota immigrant; that this decision was affirmed by the Board of Commissioners of
which petitioner was duly notified by the Secretary of said Board in a letter dated July 12, 1961; that in
a motu proprio decision rendered by the Board of Commissioners composed of a new set of members
dated June 28, 1962 the latter found that petitioner's claim that she is the lawful wife of Perfecto Blas was
without basis in evidence as it was "bereft of substantial proof of husband-wife relationship"; that said
Board further held that, it appearing that in the entry proceedings of Perfecto Blas had on January 23,
1947 he declared that he first visited China in 1935 and married petitioner in 1936, it could not possibly
sustain her claim that she married Perfecto Blas in 1929; that in an affidavit dated August 9, 1962
Perfecto Blas claimed that he went to China in 1929, 1935 and 1941, although in his re-entry declaration
he admitted that he first went to China in 1935, then in 1937, then in 1939, and lastly in 1941; and that
Perfecto Blas in the same affidavit likewise claimed that he first went to China when he was merely four
years old so that computed from his date of birth in 1908 it must have been in 1912.
In view of the discrepancies found in the statements made by petitioner and her alleged husband Perfecto
Blas in the several investigations conducted by the immigration authorities concerning their alleged
marriage before a village leader in China in 1929, coupled with the fact that the only basis in support of
petitioner's claim that she is the lawful wife of Perfecto Blas is "a mass of oral and documentary evidence
bereft of substantial proof of husband-wife relationship," the Board of Commissionersmotu
proprio reviewed the record concerning the admission of petitioner into the country resulting in its
finding that she was improperly admitted. Thus, said Board made the following comment:
The only basis in support of the claim that she is the wife of Perfecto Blas is a mass of oral and
documentary evidence bereft of substantial proof of husband-wife relationship. She relies on the records
of Perfecto Blas in connection with his cancellation case and the testimony of the supposed children in the
previous admission proceeding. But this claim is belied by the admission of Perfecto Blas himself, in the
hearing conducted by a Board of special inquiry in connection with his entry on January 23, 1947, that he
was married to one Ng Yo in Ki Say, Chingkang, China in 1936, his first visit there being in 1935; he
could not therefore have been married to herein applicant in 1929.
The above comment cannot be disputed, it finding support in the record. Indeed, not only is there no
documentary evidence to support the alleged marriage of petitioner to Perfecto Blas but the record is
punctured with so many inconsistencies which cannot but lead one to doubt their veracity concerning the
pretended marriage in China in 1929. This claim cannot also be entertained under our law on family
relations. Thus, Article 15 of our new Civil Code provides that laws relating to family rights or to the
status of persons are binding upon citizens of the Philippines, even though living abroad, and it is well-
known that in 1929 in order that a marriage celebrated in the Philippines may be valid it must be
solemnized either by a judge of any court inferior to the Supreme Court, a justice of the peace, or a priest
or minister of the gospel of any denomination duly registered in the Philippine Library and Museum
(Public Act 3412, Section 2). Even if we assume, therefore, that the marriage of petitioner to Perfecto
Blas before a village leader is valid in China, the same is not one of those authorized in our country.
But it may be contended that under Section 4 of General orders No. 68, as reproduced in Section 19
of Act No. 3613, which is now Article 71 of our new Civil Code, a marriage contracted outside of the
Philippines which is valid under the law of the country in which it was celebrated is also valid in the
Philippines. But no validity can be given to this contention because no proof was presented relative to the
law of marriage in China. Such being the case, we should apply the general rule that in the absence of
proof of the law of a foreign country it should be presumed that it is the same as our own.
The statutes of other countries or states must be pleaded and proved the same as any other fact. Courts
cannot take judicial notice of what such laws are. In the absence of pleading and proof the laws of a
foreign country or state will be presumed to be the same as our own. (Yam Ka Lim v. Collector of
Customs, 30 Phil. 46).
In the absence of anything to the contrary as to the character of a foreign law, it will be presumed to be
the same as the domestic law on the same subject. (Lim and Lim vs. Collector of Customs, 36 Phil. 472).
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. (Miciano v. Brimo, 50 Phil. 867).
Since our law only recognizes a marriage celebrated before any of the officers mentioned therein, and a
village leader is not one of them, it is clear that petitioner's marriage, even if true, cannot be recognized in
this jurisdiction.
WHEREFORE, the decision appealed from is reversed. As a corollary, the petition formandamus filed
before the court a quo is hereby dismissed. No costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P.,
and Zaldivar, JJ., concur.





Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11622 January 28, 1961
THE COLLECTOR OF INTERNAL REVENUE, petitioner,
vs.
DOUGLAS FISHER AND BETTINA FISHER, and the COURT OF TAX
APPEALS, respondents.
x---------------------------------------------------------x
G.R. No. L-11668 January 28, 1961.
DOUGLAS FISHER AND BETTINA FISHER, petitioner,
vs.
THE COLLECTOR OF INTERNAL REVENUE, and the COURT OF TAX
APPEALS, respondents.
BARRERA, J .:
This case relates to the determination and settlement of the hereditary estate left by the
deceased Walter G. Stevenson, and the laws applicable thereto. Walter G. Stevenson (born in
the Philippines on August 9, 1874 of British parents and married in the City of Manila on
January 23, 1909 to Beatrice Mauricia Stevenson another British subject) died on February 22,
1951 in San Francisco, California, U.S.A. whereto he and his wife moved and established their
permanent residence since May 10, 1945. In his will executed in San Francisco on May 22,
1947, and which was duly probated in the Superior Court of California on April 11, 1951,
Stevenson instituted his wife Beatrice as his sole heiress to the following real and personal
properties acquired by the spouses while residing in the Philippines, described and preliminary
assessed as follows:
Gross Estate

Real Property 2 parcels of land in
Baguio, covered by T.C.T. Nos. 378 and
379 P43,500.00
Personal Property


(1) 177 shares of stock of Canacao
Estate at P10.00 each 1,770.00

(2) 210,000 shares of stock of Mindanao
Mother Lode Mines, Inc. at P0.38 per
share 79,800.00

(3) Cash credit with Canacao Estate Inc. 4,870.88

(4) Cash, with the Chartered Bank of
India, Australia & China 851.97

Total Gross Assets P130,792.85
On May 22, 1951, ancillary administration proceedings were instituted in the Court of First
Instance of Manila for the settlement of the estate in the Philippines. In due time Stevenson's
will was duly admitted to probate by our court and Ian Murray Statt was appointed ancillary
administrator of the estate, who on July 11, 1951, filed a preliminary estate and inheritance tax
return with the reservation of having the properties declared therein finally appraised at their
values six months after the death of Stevenson. Preliminary return was made by the ancillary
administrator in order to secure the waiver of the Collector of Internal Revenue on the
inheritance tax due on the 210,000 shares of stock in the Mindanao Mother Lode Mines Inc.
which the estate then desired to dispose in the United States. Acting upon said return, the
Collector of Internal Revenue accepted the valuation of the personal properties declared therein,
but increased the appraisal of the two parcels of land located in Baguio City by fixing their fair
market value in the amount of P52.200.00, instead of P43,500.00. After allowing the deductions
claimed by the ancillary administrator for funeral expenses in the amount of P2,000.00 and for
judicial and administration expenses in the sum of P5,500.00, the Collector assessed the state
the amount of P5,147.98 for estate tax and P10,875,26 or inheritance tax, or a total of
P16,023.23. Both of these assessments were paid by the estate on June 6, 1952.
On September 27, 1952, the ancillary administrator filed in amended estate and inheritance tax
return in pursuance f his reservation made at the time of filing of the preliminary return and for
the purpose of availing of the right granted by section 91 of the National Internal Revenue Code.
In this amended return the valuation of the 210,000 shares of stock in the Mindanao Mother
Lode Mines, Inc. was reduced from 0.38 per share, as originally declared, to P0.20 per share, or
from a total valuation of P79,800.00 to P42,000.00. This change in price per share of stock was
based by the ancillary administrator on the market notation of the stock obtaining at the San
Francisco California) Stock Exchange six months from the death of Stevenson, that is, As of
August 22, 1931. In addition, the ancillary administrator made claim for the following deductions:
Funeral expenses ($1,04326) P2,086.52
Judicial Expenses:


(a) Administrator's Fee P1,204.34


(b) Attorney's Fee 6.000.00


(c) Judicial and Administration
expenses as of August 9, 1952 1,400.05


8,604.39

Real Estate Tax for 1951 on
Baguio real properties (O.R. No.
B-1 686836)

652.50

Claims against the estate:
($5,000.00) P10,000.00 P10,000.00


Plus: 4% int. p.a. from Feb. 2 to
22, 1951 22.47 10,022.47
Sub-Total P21,365.88
In the meantime, on December 1, 1952, Beatrice Mauricia Stevenson assigned all her rights
and interests in the estate to the spouses, Douglas and Bettina Fisher, respondents herein.
On September 7, 1953, the ancillary administrator filed a second amended estate and
inheritance tax return (Exh. "M-N"). This return declared the same assets of the estate stated in
the amended return of September 22, 1952, except that it contained new claims for additional
exemption and deduction to wit: (1) deduction in the amount of P4,000.00 from the gross estate
of the decedent as provided for in Section 861 (4) of the U.S. Federal Internal Revenue Code
which the ancillary administrator averred was allowable by way of the reciprocity granted by
Section 122 of the National Internal Revenue Code, as then held by the Board of Tax Appeals in
case No. 71 entitled "Housman vs. Collector," August 14, 1952; and (2) exemption from the
imposition of estate and inheritance taxes on the 210,000 shares of stock in the Mindanao
Mother Lode Mines, Inc. also pursuant to the reciprocity proviso of Section 122 of the National
Internal Revenue Code. In this last return, the estate claimed that it was liable only for the
amount of P525.34 for estate tax and P238.06 for inheritance tax and that, as a consequence, it
had overpaid the government. The refund of the amount of P15,259.83, allegedly overpaid, was
accordingly requested by the estate. The Collector denied the claim. For this reason, action was
commenced in the Court of First Instance of Manila by respondents, as assignees of Beatrice
Mauricia Stevenson, for the recovery of said amount. Pursuant to Republic Act No. 1125, the
case was forwarded to the Court of Tax Appeals which court, after hearing, rendered decision
the dispositive portion of which reads as follows:
In fine, we are of the opinion and so hold that: (a) the one-half () share of the surviving
spouse in the conjugal partnership property as diminished by the obligations properly
chargeable to such property should be deducted from the net estate of the deceased
Walter G. Stevenson, pursuant to Section 89-C of the National Internal Revenue Code;
(b) the intangible personal property belonging to the estate of said Stevenson is exempt
from inheritance tax, pursuant to the provision of section 122 of the National Internal
Revenue Code in relation to the California Inheritance Tax Law but decedent's estate is
not entitled to an exemption of P4,000.00 in the computation of the estate tax; (c) for
purposes of estate and inheritance taxation the Baguio real estate of the spouses should
be valued at P52,200.00, and 210,000 shares of stock in the Mindanao Mother Lode
Mines, Inc. should be appraised at P0.38 per share; and (d) the estate shall be entitled
to a deduction of P2,000.00 for funeral expenses and judicial expenses of P8,604.39.
From this decision, both parties appealed.
The Collector of Internal Revenue, hereinafter called petitioner assigned four errors allegedly
committed by the trial court, while the assignees, Douglas and Bettina Fisher hereinafter called
respondents, made six assignments of error. Together, the assigned errors raise the following
main issues for resolution by this Court:
(1) Whether or not, in determining the taxable net estate of the decedent, one-half () of the net
estate should be deducted therefrom as the share of tile surviving spouse in accordance with
our law on conjugal partnership and in relation to section 89 (c) of the National Internal revenue
Code;
(2) Whether or not the estate can avail itself of the reciprocity proviso embodied in Section 122
of the National Internal Revenue Code granting exemption from the payment of estate and
inheritance taxes on the 210,000 shares of stock in the Mindanao Mother Lode Mines Inc.;
(3) Whether or not the estate is entitled to the deduction of P4,000.00 allowed by Section 861,
U.S. Internal Revenue Code in relation to section 122 of the National Internal Revenue Code;
(4) Whether or not the real estate properties of the decedent located in Baguio City and the
210,000 shares of stock in the Mindanao Mother Lode Mines, Inc., were correctly appraised by
the lower court;
(5) Whether or not the estate is entitled to the following deductions: P8,604.39 for judicial and
administration expenses; P2,086.52 for funeral expenses; P652.50 for real estate taxes; and
P10,0,22.47 representing the amount of indebtedness allegedly incurred by the decedent during
his lifetime; and
(6) Whether or not the estate is entitled to the payment of interest on the amount it claims to
have overpaid the government and to be refundable to it.
In deciding the first issue, the lower court applied a well-known doctrine in our civil law that in
the absence of any ante-nuptial agreement, the contracting parties are presumed to have
adopted the system of conjugal partnership as to the properties acquired during their marriage.
The application of this doctrine to the instant case is being disputed, however, by petitioner
Collector of Internal Revenue, who contends that pursuant to Article 124 of the New Civil Code,
the property relation of the spouses Stevensons ought not to be determined by the Philippine
law, but by the national law of the decedent husband, in this case, the law of England. It is
alleged by petitioner that English laws do not recognize legal partnership between spouses, and
that what obtains in that jurisdiction is another regime of property relation, wherein all properties
acquired during the marriage pertain and belong Exclusively to the husband. In further support
of his stand, petitioner cites Article 16 of the New Civil Code (Art. 10 of the old) to the effect that
in testate and intestate proceedings, the amount of successional rights, among others, is to be
determined by the national law of the decedent.
In this connection, let it be noted that since the mariage of the Stevensons in the Philippines
took place in 1909, the applicable law is Article 1325 of the old Civil Code and not Article 124 of
the New Civil Code which became effective only in 1950. It is true that both articles adhere to
the so-called nationality theory of determining the property relation of spouses where one of
them is a foreigner and they have made no prior agreement as to the administration disposition,
and ownership of their conjugal properties. In such a case, the national law of the husband
becomes the dominant law in determining the property relation of the spouses. There is,
however, a difference between the two articles in that Article 124
1
of the new Civil Code
expressly provides that it shall be applicable regardless of whether the marriage was celebrated
in the Philippines or abroad while Article 1325
2
of the old Civil Code is limited to marriages
contracted in a foreign land.
It must be noted, however, that what has just been said refers to mixed marriages between a
Filipino citizen and a foreigner. In the instant case, both spouses are foreigners who married in
the Philippines. Manresa,
3
in his Commentaries, has this to say on this point:
La regla establecida en el art. 1.315, se refiere a las capitulaciones otorgadas en
Espana y entre espanoles. El 1.325, a las celebradas en el extranjero cuando alguno de
los conyuges es espanol. En cuanto a la regla procedente cuando dos extranjeros se
casan en Espana, o dos espanoles en el extranjero hay que atender en el primer caso a
la legislacion de pais a que aquellos pertenezean, y en el segundo, a las reglas
generales consignadas en los articulos 9 y 10 de nuestro Codigo. (Emphasis supplied.)
If we adopt the view of Manresa, the law determinative of the property relation of the
Stevensons, married in 1909, would be the English law even if the marriage was celebrated in
the Philippines, both of them being foreigners. But, as correctly observed by the Tax Court, the
pertinent English law that allegedly vests in the decedent husband full ownership of the
properties acquired during the marriage has not been proven by petitioner. Except for a mere
allegation in his answer, which is not sufficient, the record is bereft of any evidence as to what
English law says on the matter. In the absence of proof, the Court is justified, therefore, in
indulging in what Wharton calls "processual presumption," in presuming that the law of England
on this matter is the same as our law.
4

Nor do we believe petitioner can make use of Article 16 of the New Civil Code (art. 10, old Civil
Code) to bolster his stand. A reading of Article 10 of the old Civil Code, which incidentally is the
one applicable, shows that it does not encompass or contemplate to govern the question of
property relation between spouses. Said article distinctly speaks of amount of successional
rights and this term, in speaks in our opinion, properly refers to the extent or amount of property
that each heir is legally entitled to inherit from the estate available for distribution. It needs to be
pointed out that the property relation of spouses, as distinguished from their successional rights,
is governed differently by the specific and express provisions of Title VI, Chapter I of our new
Civil Code (Title III, Chapter I of the old Civil Code.) We, therefore, find that the lower court
correctly deducted the half of the conjugal property in determining the hereditary estate left by
the deceased Stevenson.
On the second issue, petitioner disputes the action of the Tax Court in the exempting the
respondents from paying inheritance tax on the 210,000 shares of stock in the Mindanao Mother
Lode Mines, Inc. in virtue of the reciprocity proviso of Section 122 of the National Internal
Revenue Code, in relation to Section 13851 of the California Revenue and Taxation Code, on
the ground that: (1) the said proviso of the California Revenue and Taxation Code has not been
duly proven by the respondents; (2) the reciprocity exemptions granted by section 122 of the
National Internal Revenue Code can only be availed of by residents of foreign countries and not
of residents of a state in the United States; and (3) there is no "total" reciprocity between the
Philippines and the state of California in that while the former exempts payment of both estate
and inheritance taxes on intangible personal properties, the latter only exempts the payment of
inheritance tax..
To prove the pertinent California law, Attorney Allison Gibbs, counsel for herein respondents,
testified that as an active member of the California Bar since 1931, he is familiar with the
revenue and taxation laws of the State of California. When asked by the lower court to state the
pertinent California law as regards exemption of intangible personal properties, the witness cited
article 4, section 13851 (a) and (b) of the California Internal and Revenue Code as published in
Derring's California Code, a publication of the Bancroft-Whitney Company inc. And as part of his
testimony, a full quotation of the cited section was offered in evidence as Exhibits "V-2" by the
respondents.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice of them.
5
Like any other fact, they must be alleged and
proved.
6

Section 41, Rule 123 of our Rules of Court prescribes the manner of proving foreign laws before
our tribunals. However, although we believe it desirable that these laws be proved in
accordance with said rule, we held in the case of Willamette Iron and Steel Works v. Muzzal, 61
Phil. 471, that "a reading of sections 300 and 301 of our Code of Civil Procedure (now section
41, Rule 123) will convince one that these sections do not exclude the presentation of other
competent evidence to prove the existence of a foreign law." In that case, we considered the
testimony of an attorney-at-law of San Francisco, California who quoted verbatim a section of
California Civil Code and who stated that the same was in force at the time the obligations were
contracted, as sufficient evidence to establish the existence of said law. In line with this view, we
find no error, therefore, on the part of the Tax Court in considering the pertinent California law
as proved by respondents' witness.
We now take up the question of reciprocity in exemption from transfer or death taxes, between
the State of California and the Philippines.F
Section 122 of our National Internal Revenue Code, in pertinent part, provides:
... And, provided, further, That no tax shall be collected under this Title in respect of
intangible personal property (a) if the decedent at the time of his death was a resident of
a foreign country which at the time of his death did not impose a transfer of tax or death
tax of any character in respect of intangible personal property of citizens of the
Philippines not residing in that foreign country, or (b) if the laws of the foreign country of
which the decedent was a resident at the time of his death allow a similar exemption
from transfer taxes or death taxes of every character in respect of intangible personal
property owned by citizens of the Philippines not residing in that foreign country."
(Emphasis supplied).
On the other hand, Section 13851 of the California Inheritance Tax Law, insofar as pertinent,
reads:.
"SEC. 13851, Intangibles of nonresident: Conditions. Intangible personal property is
exempt from the tax imposed by this part if the decedent at the time of his death was a
resident of a territory or another State of the United States or of a foreign state or
country which then imposed a legacy, succession, or death tax in respect to intangible
personal property of its own residents, but either:.
(a) Did not impose a legacy, succession, or death tax of any character in respect to
intangible personal property of residents of this State, or
(b) Had in its laws a reciprocal provision under which intangible personal property of a
non-resident was exempt from legacy, succession, or death taxes of every character if
the Territory or other State of the United States or foreign state or country in which the
nonresident resided allowed a similar exemption in respect to intangible personal
property of residents of the Territory or State of the United States or foreign state or
country of residence of the decedent." (Id.)
It is clear from both these quoted provisions that the reciprocity must be total, that is, with
respect to transfer or death taxes of any and every character, in the case of the Philippine law,
and to legacy, succession, or death taxes of any and every character, in the case of the
California law. Therefore, if any of the two states collects or imposes and does not exempt any
transfer, death, legacy, or succession tax of any character, the reciprocity does not work. This is
the underlying principle of the reciprocity clauses in both laws.
In the Philippines, upon the death of any citizen or resident, or non-resident with properties
therein, there are imposed upon his estate and its settlement, both an estate and an inheritance
tax. Under the laws of California, only inheritance tax is imposed. On the other hand, the
Federal Internal Revenue Code imposes an estate tax on non-residents not citizens of the
United States,
7
but does not provide for any exemption on the basis of reciprocity. Applying
these laws in the manner the Court of Tax Appeals did in the instant case, we will have a
situation where a Californian, who is non-resident in the Philippines but has intangible personal
properties here, will the subject to the payment of an estate tax, although exempt from the
payment of the inheritance tax. This being the case, will a Filipino, non-resident of California, but
with intangible personal properties there, be entitled to the exemption clause of the California
law, since the Californian has not been exempted from every character of legacy, succession, or
death tax because he is, under our law, under obligation to pay an estate tax? Upon the other
hand, if we exempt the Californian from paying the estate tax, we do not thereby entitle a
Filipino to be exempt from a similar estate tax in California because under the Federal Law,
which is equally enforceable in California he is bound to pay the same, there being no
reciprocity recognized in respect thereto. In both instances, the Filipino citizen is always at a
disadvantage. We do not believe that our legislature has intended such an unfair situation to the
detriment of our own government and people. We, therefore, find and declare that the lower
court erred in exempting the estate in question from payment of the inheritance tax.
We are not unaware of our ruling in the case of Collector of Internal Revenue vs. Lara (G.R.
Nos. L-9456 & L-9481, prom. January 6, 1958, 54 O.G. 2881) exempting the estate of the
deceased Hugo H. Miller from payment of the inheritance tax imposed by the Collector of
Internal Revenue. It will be noted, however, that the issue of reciprocity between the pertinent
provisions of our tax law and that of the State of California was not there squarely raised, and
the ruling therein cannot control the determination of the case at bar. Be that as it may, we now
declare that in view of the express provisions of both the Philippine and California laws that the
exemption would apply only if the law of the other grants an exemption from legacy, succession,
or death taxes of every character, there could not be partial reciprocity. It would have to be total
or none at all.
With respect to the question of deduction or reduction in the amount of P4,000.00 based on the
U.S. Federal Estate Tax Law which is also being claimed by respondents, we uphold and
adhere to our ruling in the Lara case (supra) that the amount of $2,000.00 allowed under the
Federal Estate Tax Law is in the nature of a deduction and not of an exemption regarding which
reciprocity cannot be claimed under the provision of Section 122 of our National Internal
Revenue Code. Nor is reciprocity authorized under the Federal Law. .
On the issue of the correctness of the appraisal of the two parcels of land situated in Baguio
City, it is contended that their assessed values, as appearing in the tax rolls 6 months after the
death of Stevenson, ought to have been considered by petitioner as their fair market value,
pursuant to section 91 of the National Internal Revenue Code. It should be pointed out, however,
that in accordance with said proviso the properties are required to be appraised at their fair
market value and the assessed value thereof shall be considered as the fair market value only
when evidence to the contrary has not been shown. After all review of the record, we are
satisfied that such evidence exists to justify the valuation made by petitioner which was
sustained by the tax court, for as the tax court aptly observed:
"The two parcels of land containing 36,264 square meters were valued by the
administrator of the estate in the Estate and Inheritance tax returns filed by him at
P43,500.00 which is the assessed value of said properties. On the other hand,
defendant appraised the same at P52,200.00. It is of common knowledge, and this Court
can take judicial notice of it, that assessments for real estate taxation purposes are very
much lower than the true and fair market value of the properties at a given time and
place. In fact one year after decedent's death or in 1952 the said properties were sold for
a price of P72,000.00 and there is no showing that special or extraordinary
circumstances caused the sudden increase from the price of P43,500.00, if we were to
accept this value as a fair and reasonable one as of 1951. Even more, the counsel for
plaintiffs himself admitted in open court that he was willing to purchase the said
properties at P2.00 per square meter. In the light of these facts we believe and therefore
hold that the valuation of P52,200.00 of the real estate in Baguio made by defendant is
fair, reasonable and justified in the premises." (Decision, p. 19).
In respect to the valuation of the 210,000 shares of stock in the Mindanao Mother Lode Mines,
Inc., (a domestic corporation), respondents contend that their value should be fixed on the basis
of the market quotation obtaining at the San Francisco (California) Stock Exchange, on the
theory that the certificates of stocks were then held in that place and registered with the said
stock exchange. We cannot agree with respondents' argument. The situs of the shares of stock,
for purposes of taxation, being located here in the Philippines, as respondents themselves
concede and considering that they are sought to be taxed in this jurisdiction, consistent with the
exercise of our government's taxing authority, their fair market value should be taxed on the
basis of the price prevailing in our country.
Upon the other hand, we find merit in respondents' other contention that the said shares of
stock commanded a lesser value at the Manila Stock Exchange six months after the death of
Stevenson. Through Atty. Allison Gibbs, respondents have shown that at that time a share of
said stock was bid for at only P.325 (p. 103, t.s.n.). Significantly, the testimony of Atty. Gibbs in
this respect has never been questioned nor refuted by petitioner either before this court or in the
court below. In the absence of evidence to the contrary, we are, therefore, constrained to
reverse the Tax Court on this point and to hold that the value of a share in the said mining
company on August 22, 1951 in the Philippine market was P.325 as claimed by respondents..
It should be noted that the petitioner and the Tax Court valued each share of stock of P.38 on
the basis of the declaration made by the estate in its preliminary return. Patently, this should not
have been the case, in view of the fact that the ancillary administrator had reserved and availed
of his legal right to have the properties of the estate declared at their fair market value as of six
months from the time the decedent died..
On the fifth issue, we shall consider the various deductions, from the allowance or disallowance
of which by the Tax Court, both petitioner and respondents have appealed..
Petitioner, in this regard, contends that no evidence of record exists to support the allowance of
the sum of P8,604.39 for the following expenses:.
1) Administrator's fee P1,204.34
2) Attorney's fee 6,000.00
3) Judicial and Administrative expenses 2,052.55
Total Deductions P8,604.39
An examination of the record discloses, however, that the foregoing items were considered
deductible by the Tax Court on the basis of their approval by the probate court to which said
expenses, we may presume, had also been presented for consideration. It is to be supposed
that the probate court would not have approved said items were they not supported by evidence
presented by the estate. In allowing the items in question, the Tax Court had before it the
pertinent order of the probate court which was submitted in evidence by respondents. (Exh.
"AA-2", p. 100, record). As the Tax Court said, it found no basis for departing from the findings
of the probate court, as it must have been satisfied that those expenses were actually incurred.
Under the circumstances, we see no ground to reverse this finding of fact which, under Republic
Act of California National Association, which it would appear, that while still living, Walter G.
Stevenson obtained we are not inclined to pass upon the claim of respondents in respect to the
additional amount of P86.52 for funeral expenses which was disapproved by the court a quo for
lack of evidence.
In connection with the deduction of P652.50 representing the amount of realty taxes paid in
1951 on the decedent's two parcels of land in Baguio City, which respondents claim was
disallowed by the Tax Court, we find that this claim has in fact been allowed. What happened
here, which a careful review of the record will reveal, was that the Tax Court, in itemizing the
liabilities of the estate, viz:
1) Administrator's fee P1,204.34
2) Attorney's fee 6,000.00
3) Judicial and Administration expenses as of
August 9, 1952 2,052.55
Total P9,256.89
added the P652.50 for realty taxes as a liability of the estate, to the P1,400.05 for judicial and
administration expenses approved by the court, making a total of P2,052.55, exactly the same
figure which was arrived at by the Tax Court for judicial and administration expenses. Hence,
the difference between the total of P9,256.98 allowed by the Tax Court as deductions, and the
P8,604.39 as found by the probate court, which is P652.50, the same amount allowed for realty
taxes. An evident oversight has involuntarily been made in omitting the P2,000.00 for funeral
expenses in the final computation. This amount has been expressly allowed by the lower court
and there is no reason why it should not be. .
We come now to the other claim of respondents that pursuant to section 89(b) (1) in relation to
section 89(a) (1) (E) and section 89(d), National Internal Revenue Code, the amount of
P10,022.47 should have been allowed the estate as a deduction, because it represented an
indebtedness of the decedent incurred during his lifetime. In support thereof, they offered in
evidence a duly certified claim, presented to the probate court in California by the Bank of
California National Association, which it would appear, that while still living, Walter G.
Stevenson obtained a loan of $5,000.00 secured by pledge on 140,000 of his shares of stock in
the Mindanao Mother Lode Mines, Inc. (Exhs. "Q-Q4", pp. 53-59, record). The Tax Court
disallowed this item on the ground that the local probate court had not approved the same as a
valid claim against the estate and because it constituted an indebtedness in respect to
intangible personal property which the Tax Court held to be exempt from inheritance tax.
For two reasons, we uphold the action of the lower court in disallowing the deduction.
Firstly, we believe that the approval of the Philippine probate court of this particular
indebtedness of the decedent is necessary. This is so although the same, it is averred has been
already admitted and approved by the corresponding probate court in California, situs of the
principal or domiciliary administration. It is true that we have here in the Philippines only an
ancillary administration in this case, but, it has been held, the distinction between domiciliary or
principal administration and ancillary administration serves only to distinguish one administration
from the other, for the two proceedings are separate and independent.
8
The reason for the
ancillary administration is that, a grant of administration does not ex proprio vigore, have any
effect beyond the limits of the country in which it was granted. Hence, we have the requirement
that before a will duly probated outside of the Philippines can have effect here, it must first be
proved and allowed before our courts, in much the same manner as wills originally presented for
allowance therein.
9
And the estate shall be administered under letters testamentary, or letters of
administration granted by the court, and disposed of according to the will as probated, after
payment of just debts and expenses of administration.
10
In other words, there is a regular
administration under the control of the court, where claims must be presented and approved,
and expenses of administration allowed before deductions from the estate can be authorized.
Otherwise, we would have the actuations of our own probate court, in the settlement and
distribution of the estate situated here, subject to the proceedings before the foreign court over
which our courts have no control. We do not believe such a procedure is countenanced or
contemplated in the Rules of Court.
Another reason for the disallowance of this indebtedness as a deduction, springs from the
provisions of Section 89, letter (d), number (1), of the National Internal Revenue Code which
reads:
(d) Miscellaneous provisions (1) No deductions shall be allowed in the case of a non-
resident not a citizen of the Philippines unless the executor, administrator or anyone of
the heirs, as the case may be, includes in the return required to be filed under section
ninety-three the value at the time of his death of that part of the gross estate of the non-
resident not situated in the Philippines."
In the case at bar, no such statement of the gross estate of the non-resident Stevenson not
situated in the Philippines appears in the three returns submitted to the court or to the office of
the petitioner Collector of Internal Revenue. The purpose of this requirement is to enable the
revenue officer to determine how much of the indebtedness may be allowed to be deducted,
pursuant to (b), number (1) of the same section 89 of the Internal Revenue Code which provides:
(b) Deductions allowed to non-resident estates. In the case of a non-resident not a
citizen of the Philippines, by deducting from the value of that part of his gross estate
which at the time of his death is situated in the Philippines
(1) Expenses, losses, indebtedness, and taxes. That proportion of the deductions
specified in paragraph (1) of subjection (a) of this section
11
which the value of such part
bears the value of his entire gross estate wherever situated;"
In other words, the allowable deduction is only to the extent of the portion of the indebtedness
which is equivalent to the proportion that the estate in the Philippines bears to the total estate
wherever situated. Stated differently, if the properties in the Philippines constitute but 1/5 of the
entire assets wherever situated, then only 1/5 of the indebtedness may be deducted. But since,
as heretofore adverted to, there is no statement of the value of the estate situated outside the
Philippines, no part of the indebtedness can be allowed to be deducted, pursuant to Section 89,
letter (d), number (1) of the Internal Revenue Code.
For the reasons thus stated, we affirm the ruling of the lower court disallowing the deduction of
the alleged indebtedness in the sum of P10,022.47.
In recapitulation, we hold and declare that:
(a) only the one-half (1/2) share of the decedent Stevenson in the conjugal partnership
property constitutes his hereditary estate subject to the estate and inheritance taxes;
(b) the intangible personal property is not exempt from inheritance tax, there existing no
complete total reciprocity as required in section 122 of the National Internal Revenue
Code, nor is the decedent's estate entitled to an exemption of P4,000.00 in the
computation of the estate tax;
(c) for the purpose of the estate and inheritance taxes, the 210,000 shares of stock in
the Mindanao Mother Lode Mines, Inc. are to be appraised at P0.325 per share; and
(d) the P2,000.00 for funeral expenses should be deducted in the determination of the
net asset of the deceased Stevenson.
In all other respects, the decision of the Court of Tax Appeals is affirmed.
Respondent's claim for interest on the amount allegedly overpaid, if any actually results after a
recomputation on the basis of this decision is hereby denied in line with our recent decision
in Collector of Internal Revenue v. St. Paul's Hospital (G.R. No. L-12127, May 29, 1959)
wherein we held that, "in the absence of a statutory provision clearly or expressly directing or
authorizing such payment, and none has been cited by respondents, the National Government
cannot be required to pay interest."
WHEREFORE, as modified in the manner heretofore indicated, the judgment of the lower court
is hereby affirmed in all other respects not inconsistent herewith. No costs. So ordered.
Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Gutierrez David,
Paredes and Dizon, JJ., concur.


Footnotes
1
ART. 124. If the marriage is between a citizen of the Philippines and a foreigner,
whether celebrated in the Philippines or abroad, the following rules shall prevail: (1) If
the husband is a citizen of the Philippines while the wife is a foreigner, the provisions of
this Code shall govern their property relations; (2) If the husband is a foreigner and the
wife is a citizen of the Philippines, the laws of the husband's country shall be followed,
without prejudice to the provisions of this Code with regard to immovable property."
2
ART. 1325. Should the marriage be contracted in a foreign country, between a
Spaniard and a foreign woman or between a foreigner and a Spanish woman, and the
contracting parties should not make any statement or stipulation with respect to their
property, it shall be understood, when the husband is a Spaniard, that he marries under
the system of the legal conjugal partnership, and when the wife is a Spaniard, that she
marries under the system of law in force in the husband's country, all without prejudice to
the provisions of this code with respect to real property. .
3
IX Manresa, Comentarios al Codigo Civil Espanol, p. 209. .
4
Yam Ka Lim vs. Collector of Customs, 30 Phil. 46; Lim & Lim vs. Collector of Customs,
36 Phil. 472; International Harvester Co. vs. Hamburg-American Line, 42 Phil. 845;
Beam vs. Yatco, 46 O.G. No. 2, p. 530.).
5
Lim vs. Collector of Customs, supra; International Harvester Co. vs. Hamburg-
American Line, supra; Phil. Manufacturing Co. vs. Union Ins. Society of Canton, 42 Phil.
378; Adong vs. Cheong Seng Gee, Phil. 53.
6
Sy Joc Leing vs. Sy Quia, 16 Phil. 138; Ching Huat vs. Co Heong, 77 Phil. 985; Adong
vs. Cheong supra.
7
See Sec. 860, Internal Revenue Code of 1939, 26 USCA 408.
8
In the matter of the testate estate of Basil Gordon Butler, G.R. No. L-3677, Nov. 29,
1951. .
9
Rule 78, Sees. 1, 2 and 3, Rules of Court. See also Hix vs. Fluemer, 54 Phil. 610. .
10
Rule 78, See. 4, lbid.


epublic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 112573 February 9, 1995
NORTHWEST ORIENT AIRLINES, INC. petitioner,
vs.
COURT OF APPEALS and C.F. SHARP & COMPANY INC., respondents.

PADILLA, JR., J .:
This petition for review on certiorari seeks to set aside the decision of the Court of Appeals
affirming the dismissal of the petitioner's complaint to enforce the judgment of a Japanese court.
The principal issue here is whether a Japanese court can acquire jurisdiction over a Philippine
corporation doing business in Japan by serving summons through diplomatic channels on the
Philippine corporation at its principal office in Manila after prior attempts to serve summons in
Japan had failed.
Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation organized
under the laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637
of the Regional Trial Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a
Japanese court against private respondent C.F. Sharp & Company, Inc., (hereinafter SHARP), a
corporation incorporated under Philippine laws.
As found by the Court of Appeals in the challenged decision of 10 November 1993,
1
the
following are the factual and procedural antecedents of this controversy:
On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp &
Company, through its Japan branch, entered into an International Passenger
Sales Agency Agreement, whereby the former authorized the latter to sell its air
transportation tickets. Unable to remit the proceeds of the ticket sales made by
defendant on behalf of the plaintiff under the said agreement, plaintiff on March
25, 1980 sued defendant in Tokyo, Japan, for collection of the unremitted
proceeds of the ticket sales, with claim for damages.
On April 11, 1980, a writ of summons was issued by the 36th Civil Department,
Tokyo District Court of Japan against defendant at its office at the Taiheiyo
Building, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, Kanagawa
Prefecture. The attempt to serve the summons was unsuccessful because the
bailiff was advised by a person in the office that Mr. Dinozo, the person believed
to be authorized to receive court processes was in Manila and would be back on
April 24, 1980.
On April 24, 1980, bailiff returned to the defendant's office to serve the summons.
Mr. Dinozo refused to accept the same claiming that he was no longer an
employee of the defendant.
After the two attempts of service were unsuccessful, the judge of the Tokyo
District Court decided to have the complaint and the writs of summons served at
the head office of the defendant in Manila. On July 11, 1980, the Director of the
Tokyo District Court requested the Supreme Court of Japan to serve the
summons through diplomatic channels upon the defendant's head office in
Manila.
On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit
the writ of summons (p. 276, Records). Despite receipt of the same, defendant
failed to appear at the scheduled hearing. Thus, the Tokyo Court proceeded to
hear the plaintiff's complaint and on [January 29, 1981], rendered judgment
ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and
damages for delay at the rate of 6% per annum from August 28, 1980 up to and
until payment is completed (pp. 12-14, Records).
On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the
judgment. Defendant not having appealed the judgment, the same became final
and executory.
Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a
suit for enforcement of the judgment was filed by plaintiff before the Regional
Trial Court of Manila Branch 54.
2

On July 16, 1983, defendant filed its answer averring that the judgment of the
Japanese Court sought to be enforced is null and void and unenforceable in this
jurisdiction having been rendered without due and proper notice to the defendant
and/or with collusion or fraud and/or upon a clear mistake of law and fact (pp. 41-
45, Rec.).
Unable to settle the case amicably, the case was tried on the merits. After the
plaintiff rested its case, defendant on April 21, 1989, filed a Motion for Judgment
on a Demurrer to Evidence based on two grounds:
(1) the foreign judgment sought to be enforced is null and void for want of
jurisdiction and (2) the said judgment is contrary to Philippine law and public
policy and rendered without due process of law. Plaintiff filed its opposition after
which the court a quo rendered the now assailed decision dated June 21, 1989
granting the demurrer motion and dismissing the complaint (Decision, pp. 376-
378, Records). In granting the demurrer motion, the trial court held that:
The foreign judgment in the Japanese Court sought in this action
is null and void for want of jurisdiction over the person of the
defendant considering that this is an action in personam; the
Japanese Court did not acquire jurisdiction over the person of the
defendant because jurisprudence requires that the defendant be
served with summons in Japan in order for the Japanese Court to
acquire jurisdiction over it, the process of the Court in Japan sent
to the Philippines which is outside Japanese jurisdiction cannot
confer jurisdiction over the defendant in the case before the
Japanese Court of the case at bar. Boudard versus Tait 67 Phil.
170. The plaintiff contends that the Japanese Court acquired
jurisdiction because the defendant is a resident of Japan, having
four (4) branches doing business therein and in fact had a permit
from the Japanese government to conduct business in Japan
(citing the exhibits presented by the plaintiff); if this is so then
service of summons should have been made upon the defendant
in Japan in any of these alleged four branches; as admitted by the
plaintiff the service of the summons issued by the Japanese Court
was made in the Philippines thru a Philippine Sheriff. This Court
agrees that if the defendant in a foreign court is a resident in the
court of that foreign court such court could acquire jurisdiction
over the person of the defendant but it must be served upon the
defendant in the territorial jurisdiction of the foreign court. Such is
not the case here because the defendant was served with
summons in the Philippines and not in Japan.
Unable to accept the said decision, plaintiff on July 11, 1989 moved for
reconsideration of the decision, filing at the same time a conditional Notice of
Appeal, asking the court to treat the said notice of appeal "as in effect after and
upon issuance of the court's denial of the motion for reconsideration."
Defendant opposed the motion for reconsideration to which a Reply dated
August 28, 1989 was filed by the plaintiff.
On October 16, 1989, the lower court disregarded the Motion for Reconsideration
and gave due course to the plaintiff's Notice of Appeal.
3

In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its
reliance upon Boudard vs. Tait
4
wherein it was held that "the process of the court has no
extraterritorial effect and no jurisdiction is acquired over the person of the defendant by serving
him beyond the boundaries of the state." To support its position, the Court of Appeals further
stated:
In an action strictly in personam, such as the instant case, personal service of
summons within the forum is required for the court to acquire jurisdiction over the
defendant (Magdalena Estate Inc. vs. Nieto, 125 SCRA 230). To confer
jurisdiction on the court, personal or substituted service of summons on the
defendant not extraterritorial service is necessary (Dial Corp vs. Soriano, 161
SCRA 739).
But while plaintiff-appellant concedes that the collection suit filed is an action in
personam, it is its theory that a distinction must be made between an action in
personam against a resident defendant and an action in personam against a
non-resident defendant. Jurisdiction is acquired over a non-resident defendant
only if he is served personally within the jurisdiction of the court and over a
resident defendant if by personal, substituted or constructive service conformably
to statutory authorization. Plaintiff-appellant argues that since the defendant-
appellee maintains branches in Japan it is considered a resident defendant.
Corollarily, personal, substituted or constructive service of summons when made
in compliance with the procedural rules is sufficient to give the court jurisdiction
to render judgment in personam.
Such an argument does not persuade.
It is a general rule that processes of the court cannot lawfully be served outside
the territorial limits of the jurisdiction of the court from which it issues (Carter vs.
Carter; 41 S.E. 2d 532, 201) and this isregardless of the residence or
citizenship of the party thus served (Iowa-Rahr vs. Rahr, 129 NW 494, 150 Iowa
511, 35 LRC, NS, 292, Am. Case 1912 D680). There must be actual service
within the proper territorial limits on defendant or someone authorized to accept
service for him. Thus, a defendant, whether a resident or not in the forum where
the action is filed, must be served with summons within that forum.
But even assuming a distinction between a resident defendant and non-resident
defendant were to be adopted, such distinction applies only to natural persons
and not in the corporations. This finds support in the concept that "a corporation
has no home or residence in the sense in which those terms are applied to
natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607).
Thus, as cited by the defendant-appellee in its brief:
Residence is said to be an attribute of a natural person, and can be predicated
on an artificial being only by more or less imperfect analogy. Strictly speaking,
therefore, a corporation can have no local residence or habitation. It has been
said that a corporation is a mere ideal existence, subsisting only in contemplation
of law an invisible being which can have, in fact, no locality and can occupy no
space, and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing
Kimmerle v. Topeka, 88 370, 128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn
202)
Jurisprudence so holds that the foreign or domestic character of a corporation is
to be determined by the place of its origin where its charter was granted and not
by the location of its business activities (Jennings v. Idaho Rail Light & P. Co., 26
Idaho 703, 146 p. 101), A corporation is a "resident" and an inhabitant of the
state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49).
Defendant-appellee is a Philippine Corporation duly organized under the
Philippine laws. Clearly, its residence is the Philippines, the place of its
incorporation, and not Japan. While defendant-appellee maintains branches in
Japan, this will not make it a resident of Japan. A corporation does not become a
resident of another by engaging in business there even though licensed by that
state and in terms given all the rights and privileges of a domestic corporation
(Galveston H. & S.A.R. Co. vs. Gonzales, 151 US 496, 38 L ed. 248, 4 S Ct. 401).
On this premise, defendant appellee is a non-resident corporation. As such, court
processes must be served upon it at a place within the state in which the action
is brought and not elsewhere (St. Clair vs. Cox, 106 US 350, 27 L ed. 222, 1 S.
Ct. 354).
5

It then concluded that the service of summons effected in Manila or beyond the territorial
boundaries of Japan was null and did not confer jurisdiction upon the Tokyo District Court over
the person of SHARP; hence, its decision was void.
Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this
Court contending that the respondent court erred in holding that SHARP was not a resident of
Japan and that summons on SHARP could only be validly served within that country.
A foreign judgment is presumed to be valid and binding in the country from which it comes, until
the contrary is shown. It is also proper to presume the regularity of the proceedings and the
giving of due notice therein.
6

Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a
tribunal of a foreign country having jurisdiction to pronounce the same is presumptive evidence
of a right as between the parties and their successors-in-interest by a subsequent title. The
judgment may, however, be assailed by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court,
whether of the Philippines or elsewhere, enjoys the presumption that it was acting in the lawful
exercise of jurisdiction and has regularly performed its official duty.
Consequently, the party attacking a foreign judgment has the burden of overcoming the
presumption of its validity.
7
Being the party challenging the judgment rendered by the Japanese
court, SHARP had the duty to demonstrate the invalidity of such judgment. In an attempt to
discharge that burden, it contends that the extraterritorial service of summons effected at its
home office in the Philippines was not only ineffectual but also void, and the Japanese Court did
not, therefore acquire jurisdiction over it.
It is settled that matters of remedy and procedure such as those relating to the service of
process upon a defendant are governed by the lex fori or the internal law of the forum.
8
In this
case, it is the procedural law of Japan where the judgment was rendered that determines the
validity of the extraterritorial service of process on SHARP. As to what this law is is a question of
fact, not of law. It may not be taken judicial notice of and must be pleaded and proved like any
other fact.
9
Sections 24 and 25, Rule 132 of the Rules of Court provide that it may be evidenced
by an official publication or by a duly attested or authenticated copy thereof. It was then
incumbent upon SHARP to present evidence as to what that Japanese procedural law is and to
show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the
presumption of validity and regularity of the service of summons and the decision thereafter
rendered by the Japanese court must stand.
Alternatively in the light of the absence of proof regarding Japanese
law, the presumption of identity or similarity or the so-called processual presumption
10
may be
invoked. Applying it, the Japanese law on the matter is presumed to be similar with the
Philippine law on service of summons on a private foreign corporation doing business in the
Philippines. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign
corporation doing business in the Philippines, service may be made: (1) on its resident agent
designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on
the government official designated by law to that effect; or (3) on any of its officers or agents
within the Philippines.
If the foreign corporation has designated an agent to receive summons, the designation is
exclusive, and service of summons is without force and gives the court no jurisdiction unless
made upon him.
11

Where the corporation has no such agent, service shall be made on the government official
designated by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance
company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c)
the Securities and Exchange Commission, in the case of other foreign corporations duly
licensed to do business in the Philippines. Whenever service of process is so made, the
government office or official served shall transmit by mail a copy of the summons or other legal
proccess to the corporation at its home or principal office. The sending of such copy is a
necessary part of the service.
12

SHARP contends that the laws authorizing service of process upon the Securities and
Exchange Commission, the Superintendent of Banks, and the Insurance Commissioner, as the
case may be, presuppose a situation wherein the foreign corporation doing business in the
country no longer has any branches or offices within the Philippines. Such contention is belied
by the pertinent provisions of the said laws. Thus, Section 128 of the Corporation Code
13
and
Section 190 of the Insurance Code
14
clearly contemplate two situations: (1) if the corporation
had left the Philippines or had ceased to transact business therein, and (2) if the corporation has
no designated agent. Section 17 of the General Banking Act
15
does not even speak a
corporation which had ceased to transact business in the Philippines.
Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to
receive court processes in Japan. This silence could only mean, or least create an impression,
that it had none. Hence, service on the designated government official or on any of SHARP's
officers or agents in Japan could be availed of. The respondent, however, insists that only
service of any of its officers or employees in its branches in Japan could be resorted to. We do
not agree. As found by the respondent court, two attempts at service were made at SHARP's
Yokohama branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was believed
to be the person authorized to accept court process, was in Manila. On the second, Mr. Dinozo
was present, but to accept the summons because, according to him, he was no longer an
employee of SHARP. While it may be true that service could have been made upon any of the
officers or agents of SHARP at its three other branches in Japan, the availability of such a
recourse would not preclude service upon the proper government official, as stated above.
As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons
for SHARP be served at its head office in the Philippine's after the two attempts of service had
failed.
16
The Tokyo District Court requested the Supreme Court of Japan to cause the delivery
of the summons and other legal documents to the Philippines. Acting on that request, the
Supreme Court of Japan sent the summons together with the other legal documents to the
Ministry of Foreign Affairs of Japan which, in turn, forwarded the same to the Japanese
Embassy in Manila . Thereafter, the court processes were delivered to the Ministry (now
Department) of Foreign Affairs of the Philippines, then to the Executive Judge of the Court of
First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff
Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is
equivalent to service on the proper government official under Section 14, Rule 14 of the Rules
of Court, in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that
such manner of service is not valid under Philippine laws holds no water.
17

In deciding against the petitioner, the respondent court sustained the trial court's reliance
on Boudard vs. Tait
18
where this Court held:
The fundamental rule is that jurisdiction in personam over nonresidents, so as to
sustain a money judgment, must be based upon personal service within the state
which renders the judgment.
xxx xxx xxx
The process of a court, has no extraterritorial effect, and no jurisdiction is
acquired over the person of the defendant by serving him beyond the boundaries
of the state. Nor has a judgment of a court of a foreign country against a resident
of this country having no property in such foreign country based on process
served here, any effect here against either the defendant personally or his
property situated here.
Process issuing from the courts of one state or country cannot run into another,
and although a nonresident defendant may have been personally served with
such process in the state or country of his domicile, it will not give such
jurisdiction as to authorize a personal judgment against him.
It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto
19
and Dial
Corp. vs. Soriano,
20
as well as the principle laid down by the Iowa Supreme Court in the 1911
case of Raher vs. Raher.
21

The first three cases are, however, inapplicable. Boudard involved the enforcement of a
judgment of the civil division of the Court of First Instance of Hanoi, French Indo-China. The trial
court dismissed the case because the Hanoi court never acquired jurisdiction over the person of
the defendant considering that "[t]he, evidence adduced at the trial conclusively proves that
neither the appellee [the defendant] nor his agent or employees were ever in Hanoi, French
Indo-China; and that the deceased Marie Theodore Jerome Boudard had never, at any time,
been his employee." In Magdalena Estate, what was declared invalid resulting in the failure of
the court to acquire jurisdiction over the person of the defendants in an action in personam was
the service of summons through publication against non-appearing resident defendants. It was
claimed that the latter concealed themselves to avoid personal service of summons upon them.
In Dial, the defendants were foreign corporations which were not, domiciled and licensed to
engage in business in the Philippines and which did not have officers or agents, places of
business, or properties here. On the other hand, in the instant case, SHARP was doing
business in Japan and was maintaining four branches therein.
Insofar as to the Philippines is concerned, Raher is a thing of the past. In that case, a divided
Supreme Court of Iowa declared that the principle that there can be no jurisdiction in a court of a
territory to render a personal judgment against anyone upon service made outside its limits was
applicable alike to cases of residents and non-residents. The principle was put at rest by the
United States Supreme Court when it ruled in the 1940 case ofMilliken vs. Meyer
22
that
domicile in the state is alone sufficient to bring an absent defendant within the reach of the
state's jurisdiction for purposes of a personal judgment by means of appropriate substituted
service or personal service without the state. This principle is embodied in section 18, Rule 14
of the Rules of Court which allows service of summons on residents temporarily out of the
Philippines to be made out of the country. The rationale for this rule was explained in Millikenas
follows:
[T]he authority of a state over one of its citizens is not terminated by the mere
fact of his absence from the state. The state which accords him privileges and
affords protection to him and his property by virtue of his domicile may also exact
reciprocal duties. "Enjoyment of the privileges of residence within the state, and
the attendant right to invoke the protection of its laws, are inseparable" from the
various incidences of state citizenship. The responsibilities of that citizenship
arise out of the relationship to the state which domicile creates. That relationship
is not dissolved by mere absence from the state. The attendant duties, like the
rights and privileges incident to domicile, are not dependent on continuous
presence in the state. One such incident of domicile is amenability to suit within
the state even during sojourns without the state, where the state has provided
and employed a reasonable method for apprising such an absent party of the
proceedings against him.
23

The domicile of a corporation belongs to the state where it was incorporated.
24
In a strict
technical sense, such domicile as a corporation may have is single in its essence and a
corporation can have only one domicile which is the state of its creation.
25

Nonetheless, a corporation formed in one-state may, for certain purposes, be regarded a
resident in another state in which it has offices and transacts business. This is the rule in our
jurisdiction and apropos thereto, it may be necessery to quote what we stated in State
Investment House, Inc, vs. Citibank, N.A.,
26
to wit:
The issue is whether these Philippine branches or units may be considered
"residents of the Philippine Islands" as that term is used in Section 20 of the
Insolvency Law . . . or residents of the state under the laws of which they were
respectively incorporated. The answer cannot be found in the Insolvency Law
itself, which contains no definition of the term, resident, or any clear indication of
its meaning. There are however other statutes, albeit of subsequent enactment
and effectivity, from which enlightening notions of the term may be derived.
The National Internal Revenue Code declares that the term "'resident foreign
corporation' applies to a foreign corporation engaged in trade or business within
the Philippines," as distinguished from a "'non-resident foreign corporation' . . .
(which is one) not engaged in trade or bussiness within the Philippines." [Sec. 20,
pars. (h) and (i)].
The Offshore Banking Law, Presidential Decree No. 1034, states "that branches,
subsidiaries, affiliation, extension offices or any other units of corporation or
juridical person organized under the laws of any foreign country operating in the
Philippines shall be considered residents of the Philippines. [Sec. 1(e)].
The General Banking Act, Republic Act No. 337, places "branches and agencies
in the Philippines of foreign banks . . . (which are) called Philippine branches," in
the same category as "commercial banks, savings associations, mortgage banks,
development banks, rural banks, stock savings and loan associations" (which
have been formed and organized under Philippine laws), making no distinction
between the former and the latter in so far as the terms "banking institutions" and
"bank" are used in the Act [Sec. 2], declaring on the contrary that in "all matters
not specifically covered by special provisions applicable only to foreign banks, or
their branches and agencies in the Philippines, said foreign banks or their
branches and agencies lawfully doing business in the Philippines "shall be bound
by all laws, rules, and regulations applicable to domestic banking corporations of
the same class, except such laws, rules and regulations as provided for the
creation, formation, organization, or dissolution of corporations or as fix the
relation, liabilities, responsibilities, or duties of members, stockholders or officers
of corporation. [Sec. 18].
This court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc.
vs. Philippine Advertising Corp., 57 Phil. 607] that a foreign corporation licitly
doing business in the Philippines, which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision authorizing
attachment against a defendant not residing in the Philippine Islands; [Sec. 424,
in relation to Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1(f),
Rule 59 of the Rules of 1940, Sec. 1(f), Rule 57, Rules of 1964] in other words, a
preliminary attachment may not be applied for and granted solely on the asserted
fact that the defendant is a foreign corporation authorized to do business in the
Philippines and is consequently and necessarily, "a party who resides out of
the Philippines." Parenthetically, if it may not be considered as a party not
residing in the Philippines, or as a party who resides out of the country, then,
logically, it must be considered a party who does reside in the Philippines, who is
a resident of the country. Be this as it may, this Court pointed out that:
. . . Our laws and jurisprudence indicate a purpose to assimilate
foreign corporations, duly licensed to do business here, to the
status of domestic corporations. (Cf. Section 73, Act No. 1459,
and Marshall Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76;
Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it would be
entirely out of line with this policy should we make a discrimination
against a foreign corporation, like the petitioner, and subject its
property to the harsh writ of seizure by attachment when it has
complied not only with every requirement of law made specially of
foreign corporations, but in addition with every requirement of law
made of domestic corporations. . . .
Obviously, the assimilation of foreign corporations authorized to do business in
the Philippines "to the status of domestic corporations, subsumes their being
found and operating as corporations, hence,residing, in the country.
The same principle is recognized in American law: that the residence of a
corporation, if it can be said to have a residence, is necessarily where it
exercises corporate functions . . .;" that it is considered as dwelling "in the place
where its business is done . . .," as being "located where its franchises are
exercised . . .," and as being "present where it is engaged in the prosecution of
the corporate enterprise;" that a "foreign corporation licensed to do business in a
state is a resident of any country where it maintains an office or agent for
transaction of its usual and customary business for venue purposes;" and that
the "necessary element in its signification is locality of existence." [Words and
Phrases, Permanent Ed., vol. 37, pp. 394, 412, 493].
In as much as SHARP was admittedly doing business in Japan through its four duly registered
branches at the time the collection suit against it was filed, then in the light of the processual
presumption, SHARP may be deemed a resident of Japan, and, as such, was amenable to the
jurisdiction of the courts therein and may be deemed to have assented to the said courts' lawful
methods of serving process.
27

Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not
only under the processual presumption but also because of the presumption of regularity of
performance of official duty.
We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages
to be without merit. We find no evidence that would justify an award for attorney's fees and
litigation expenses under Article 2208 of the Civil Code of the Philippines. Nor is an award for
exemplary damages warranted. Under Article 2234 of the Civil Code, before the court may
consider the question of whether or not exemplary damages should be awarded, the plaintiff
must show that he is entitled to moral, temperate, or compensatory damaged. There being no
such proof presented by NORTHWEST, no exemplary damages may be adjudged in its favor.
WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is
AFFIRMED insofar as it denied NORTHWEST's claims for attorneys fees, litigation expenses,
and exemplary damages but REVERSED insofar as in sustained the trial court's dismissal of
NORTHWEST's complaint in Civil Case No. 83-17637 of Branch 54 of the Regional Trial Court
of Manila, and another in its stead is hereby rendered ORDERING private respondent C.F.
SHARP L COMPANY, INC. to pay to NORTHWEST the amounts adjudged in the foreign
judgment subject of said case, with interest thereon at the legal rate from the filing of the
complaint therein until the said foreign judgment is fully satisfied.
Costs against the private respondent.
SO ORDERED.
Padilla, Bellosillo, Quaison and Kapunan, JJ., concur.






Zalamea vs. Court of Appeals 288 SCRA 23 (1993)

Zalamea vs. Court of Appeals 288 SCRA 23 (1993)
FACTS:
Spouses Cesar and Suthira Zalamea, and their daughter, Liana Zalamea, purchased three (3)
airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. (TWA) for a flight
from New York to Los Angeles on June 6, 1984. The tickets of the spouses were
purchased at a discount of 75% while that of their daughter was a full fare ticket. All three tickets
represented confirmed reservations.

While in New York, on June 4, 1984, the spouses Zalamea and their daughter received a notice
of reconfirmation of their reservations for said flight. On the appointed date, however, the
spouses Zalamea and their daughter checked in at 10:00 am, an hour earlier than the
scheduled flight at 11:00 am but were placed on the wait-list because the number of passengers
who checked in before tem had already taken all the seats available on the flight.

Out of the 42 names on the wait-list, the first 22 names were eventually allowed to board the
flight to Los Angeles, including Cesar Zalamea. The two others, on the other hand, being ranked
lower than 22, were not able to fly. As it were, those holding full-fare ticket were given first
priority among the wait-listed passengers. Mr. Zalamea, who was holding the full-fare ticket of
his daughter, was allowed to board the plane; while his wife and daughter, who presented the
discounted tickets were denied boarding. Even in the next TWA flight to Los Angeles, Mrs.
Zalamea and her daughter, could not be accommodated because it was full booked. Thus, they
were constrained to book in another flight and purchased two tickets from American Airlines.

Upon their arrival in the Philippines, the spouses Zalamea filed an action for damages based on
breach of contract of air carriage before the RTC of Makati which rendered a decision in their
favor ordering the TWA to pay the price of the tickets bought from American Airlines together
with moral damages and attorneys fees. On appeal, the CA held that moral damages are
recoverable in a damage suit predicated upon a breach of contract of carriage only where there
is fraud or bad faith. It further stated that since it is a matter of record that overbooking of flights
is a common and accepted practice of airlines in the United States and is specifically allowed
under the Code of Federal Regulations by the Civil Aeronautics Board, neither fraud nor bad
faith could be imputed on TWA.

ISSUE:
Whether or not the CA erred in accepting the finding that overbooking is specifically allowed by
the US Code of Federal Regulations and in holding that there was no fraud or bad faith on the
part of TWA ?

HELD:
The CA was in error. There was fraud or bad faith on the part of TWA when it did not allow Mrs.
Zalamea and her daughter to board their flight for Los Angeles in spite of confirmed tickets. The
US law or regulation allegedly authorizing overbooking has never been proved.

1.) Foreign laws do not prove themselves nor can the court take judicial notice of them. Like any
other fact, they must be alleged and proved. Written law may be evidenced by an official
publication thereof or by a copy attested by the officers having legal custody of the record, or by
his deputy and accompanied with a certificate that such officer has custody. The certificate may
be made by a secretary of an embassy or legation, consul-general, consul, vice-consul, or
consular agent or by any officer in the foreign service of the Phil. stationed in the foreign country
in which the record is kept and authenticated by the seal of his office. Here, TWA relied solely
on the testimony of its customer service agent in her deposition that the Code of Federal
Regulations of the Civil Aeronautic Board allows overbooking. Aside from said statement, no
official publication of said code was presented as evidence. Thus, the CAs finding that
overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact.

"That there was fraud or bad faith on the part of respondent airline when it did not allow
petitioners to board their flight for Los Angeles in spite of confirmed tickets cannot be disputed.
The U.S. law or regulation allegedly authorizing overbooking has never been proved. Foreign
laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact,
they must be alleged and proved. Written law 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 with a certificate that such officer has custody. The certificate may be
made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office.
Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service
agent, in her deposition dated January 27, 1986 that the Code of Federal Regulations of the
Civil Aeronautics Board allows overbooking. Aside from said statement, no official publication of
said code was presented as evidence. Thus, respondent court's finding that overbooking is
specifically allowed by the US Code of Federal Regulations has no basis in fact."

"Even if the claimed U.S. Code of Federal Regulations does exist, the same is not applicable to
the case at bar in accordance with the principle of lex loci contractus which require that the law
of the place where the airline ticket was issued should be applied by the court where the
passengers are residents and nationals of the forum and the ticket is issued in such State by the
defendant airline. Since the tickets were sold and issued in the Philippines, the applicable law in
this case would be Philippine law."

Other Issues:

2.) Even if the claimed US Code of Federal Regulations does exist, the same is not applicable
to the case at bar in accordance with the principle of lex loci contractus which requires that the
law of the place where the airline ticket was issued should be applied by the court where the
passengers are residents and nationals of the forum and the ticket is issued in such State by the
airline.

3.) Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the
passengers concerned to an award of moral damages. Where an airline had deliberately
overbooked, it took the risk of having to deprive some passengers of their seats in case all of
them would show up for check in. for the indignity and inconvenience of being refused a
confirmed seat on the last minute, said passenger is entitled to an award of moral damages.
This is so, for a contract of carriage generates a relation attended with public duty --- a duty to
provide public service and convenience to its passengers which must be paramount to self-
interest or enrichment. Even on the assumption that overbooking is allowed, TWA is still guilty of
bad faith in not informing its passengers beforehand that it could breach the contract of carriage
even if they have confirmed tickets if there was overbooking. Moreover, TWA was also guilty of
not informing its passengers of its alleged policy of giving less priority to discounted tickets.
Evidently, TWA placed self-interest over the rights of the spouses Zalamea and their daughter
under their contract of carriage. Such conscious disregard make respondent TWA liable for
moral damages, and to deter breach of contracts by TWA in similar fashion in the future, the SC
adjudged TWA liable for exemplary damages, as well.


G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-
appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J .:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged
will and testament executed in Manila on November 1929, and the alleged last will and
testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The
value of the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the
city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and children by the first marriage
had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with
Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court
of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of
administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in
the Court of First Instance of Bulacan for the probate of a last will and testament claimed to
have been executed and signed in the Philippines on November 1929 by the late Jose B.
Suntay. This petition was denied because of the loss of said will after the filing of the petition
and before the hearing thereof and of the insufficiency of the evidence to establish the loss of
the said will. An appeal was taken from said order denying the probate of the will and this Court
held the evidence before the probate court sufficient to prove the loss of the will and remanded
the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In
spite of the fact that a commission from the probate court was issued on 24 April 1937 for the
taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the hearing sent by cablegram from China by
the surviving widow and dismissed the petition. In the meantime the Pacific War supervened.
After liberation, claiming that he had found among the files, records and documents of his late
father a will and testament in Chinese characters executed and signed by the deceased on 4
January 1931 and that the same was filed, recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying
for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will
executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign
will because of the transfer or assignment of their share right, title and interest in the estate of
the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria
Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by
the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be
threshed out in this proceedings which is concerned only with the probate of the will and
testament executed in the Philippines on November 1929 or of the foreign will allegedly
executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal
district court of Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no
bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in
the lifetime of the testator without his knowledge, nor unless its provisions are clearly
and distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the judge, under the seal of
the court, and the certificate must be filed and recorded as other wills are filed and
recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will,
was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies
that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by
Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of
Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the
attesting witnesses signed and each of them signed the attestation clause and each and every
page of the will in the presence of the testator and of the other witnesses (answers to the 31st,
41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the
drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will
written in Spanish although he knew very little of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the
lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th
interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd
interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in
November 1929 when the will was signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had
better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.);
that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed
and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs.
Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it
(check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio
Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay,
who was bringing along with him certain document and he told us or he was telling us that it was
the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing
of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her
presence and of Manuel and learned of the adjudication made in the will by her father of his
estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to
Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after
Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p.
528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on
adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect
she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s.
n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned
by the latter to the former because they could not agree on the amount of fees, the former
coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948)
that brought him to the Philippines from Amoy, and that delivery took place in November 1934
(p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother
Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24
February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own
interest, still the fact remains that she did not read the whole will but only the adjudication (pp.
526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-
examination that she read the part of the will on adjudication is inconsistent with her testimony
in chief that after Apolonio had read that part of the will he turned over or handed the document
to Manuel who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929
when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and
executed" cannot be true, for it was not the time for correcting the draft of the will, because it
must have been corrected before and all corrections and additions written in lead pencil must
have been inserted and copied in the final draft of the will which was signed on that occasion.
The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the
appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to know or he learned to them from information
given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into
Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow,
according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But
this witness testified to oppose the appointment of a co-administrator of the estate, for the
reason that he had acquired the interest of the surviving widow not only in the estate of her
deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.)
Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the
important point was that he had acquired all the share, participation and interest of the surviving
widow and of the only child by the second marriage in the estate of his deceased father. Be that
as it may, his testimony that under the will the surviving widow would take two-thirds of the
estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio
Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for
betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for
the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of
the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible
witnesses mean competent witnesses and those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew
up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his
own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that
after checking up the final with the rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called
on him and the former asked him to draw up another will favoring more his wife and child Silvino;
that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to
Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B.
Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten
insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.);
that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed
and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403,
449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on
Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from
Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where
the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.);
that after the signing of the will it was placed inside the envelope (Exhibit A) together with an
inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of
the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again
saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought
by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A)
in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating
the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his
house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope
(Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was
signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same
assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even
though the contract (on fees) was signed. I have to bring that document to court or to anywhere
else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the
point in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country,
may be allowed, filed, and recorded by the proper Court of First Instance in the
Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court
shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by
the seal of the courts, to which shall be attached a copy of the will, shall be filed and
recorded by the clerk, and the will shall have the same effect as if originally proved and
allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The
law of China on procedure in the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set
forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because
apart from the fact that the office of Consul General does not qualify and make the person who
holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted,
the adverse party would be deprived of his right to confront and cross-examine the witness.
Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings
had in the municipal district court of Amoy were for the purpose of taking the testimony of two
attesting witnesses to the will and that the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the municipal district court of Amoy is a
probate court and on the Chinese law of procedure in probate matters, it may be presumed that
the proceedings in the matter of probating or allowing a will in the Chinese courts are the a
deposition or to a perpetuation of testimony, and even if it were so it does not measure same as
those provided for in our laws on the subject. It is a proceedings in rem and for the validity of
such proceedings personal notice or by publication or both to all interested parties must be
made. The interested parties in the case were known to reside in the Philippines. The evidence
shows that no such notice was received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the
municipal district court of Amoy, China, may be likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare
that there are no errors, after said minutes were loudly read and announced actually in
the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental concepts and principles followed in the
probate and allowance of wills. Consequently, the authenticated transcript of proceedings held
in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings
leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.


Separate Opinions
PARAS, C.J ., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian,
petitioner and appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay,
oppositors and appellees, 63 Phil., 793-797, in which the following decision was rendered by
this Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in
the City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein,
and ordering the return of the case to the Court of First Instance of Bulacan for further
proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the
first time to Manuela T. Cruz with whom he had several children now residing in the
Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his
first marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case
No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted
the present proceedings for the probate of a will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed
envelope (Exhibit A) containing his will and, also another document (Exhibit B of the
petitioner) said to be a true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and
Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact
of the petitioner, arrived in the Philippines with the will in the envelope and its copy
Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel
Suntay, children by first marriage of the deceased, they snatched and opened it and,
after getting its contents and throwing away the envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel,
Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly
have the document contained in the envelope which is the will of the deceased, be
ordered to present it in court, that a day be set for the reception of evidence on the will,
and that the petitioner be appointed executrix pursuant to the designation made by the
deceased in the will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel,
Manuel and Jose Suntay stated that they did not have the said will and denied having
snatched it from Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of
the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof,
and whether it has been executed with all the essential and necessary formalities
required by law for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the
stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers
Apolonio and Angel appropriated the envelope in the circumstances above-mentioned.
The oppositors have not adduced any evidence counter to the testimony of these two
witnesses. The court, while making no express finding on this fact, took it for granted in
its decision; but it dismissed the petition believing that the evidence is insufficient to
establish that the envelope seized from Go Toh contained the will of the deceased, and
that the said will was executed with all the essential and necessary formalities required
by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained
in the envelope. Oppositors' answer admits that, according to Barretto, he prepared a
will of the deceased to which he later become a witness together with Go Toh and
Manuel Lopez, and that this will was placed in an envelope which was signed by the
deceased and by the instrumental witnesses. In court there was presented and attached
to the case an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go
Toh and Manuel Lopez. It is thus undeniable that this envelope Exhibit A is the same
one that contained the will executed by the deceased-drafted by Barretto and with the
latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point
to the loss of the will of the deceased, a circumstance justifying the presentation of
secondary evidence of its contents and of whether it was executed with all the essential
and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence
adduced by her, the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether the latter was
executed with all the formalities required by law for its probate. The testimony of Alberto
Barretto bears importantly in this connection.
Wherefore, the loss of the will executed by the deceased having been sufficiently
established, it is ordered that this case be remanded to the court of origin for further
proceedings in obedience to this decision, without any pronouncement as to the costs.
So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First
Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No.
44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or
the allowance, filing and recording of the will of the deceased which had been duly probated in
China, upon the presentation of the certificates and authentications required by Section 41, Rule
123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b)
that letters of administration be issued to herein petitioner as co-administrator of the estate of
the deceased together with Federico Suntay; and (c) that such other necessary and proper
orders be issued which this Honorable Court deems appropriate in the premises." While this
petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first
wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora
Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and Emiliano
Suntay, filed the following answer stating that they had no opposition thereto; "Come now the
heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay,
Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to the
alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18,
1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to
put into effect the testamentary disposition and wishes of their late father, they have no
opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the
background on which the alternative petition of the herein petitioner Silvino Suntay has
been based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay,
63 Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25,
1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the
decision on December 15, 1936; and the case was set for hearing on February 12, 1937,
but it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner
Maria Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in
the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).
The hearing of the case was again set for February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day
of the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent
a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan
moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva
who was representing her died (Exhibit K). The court, instead of granting the telegraphic
motion for postponement, dismissed the case in the order dated February 7, 1938
(Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the
intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the
Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the
subject of the said alternative petition. The motion for the merger and consolidation of
the two cases was granted on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss
the alternative petition on November 14, 1947, which was denied by the court in its
resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of
this court denying the motion to dismiss, filed before the Supreme Court a petition for a
writ of certiorari with preliminary injunction, which was dismissed for lack of merit on
January 27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ
of certiorari with preliminary injunction, the court was constrained to proceed with the
hearing of the probate of the lost will, the draft of which is Exhibit B, or the admission
and recording of the will which had been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice;
first to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio,
now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose,
Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had
as the only child Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament in the
office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto,
Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the
instance of Jose B. Suntay, and it was written in the Spanish language which was
understood and spoken by said testator. After the due execution of the will, that is
signing every page and the attestation clause by the testator and the witnesses in the
presence of each other, the will was placed inside the envelope (Exhibit A), sealed and
on the said envelope the testator and the three subscribing witnesses also signed, after
which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife
Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to
reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted
to the widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son
now deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that
no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her
the will and she engaged the services of the law firm of Barretto and Teodoro for the
probate of the will. Upon the request of the said attorneys the will was brought to the
Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the
law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed
of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was
entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation of
the sealed envelope to him, he opened it and examined the said will preparatory to the
filing of the petition for probate. There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay,
P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the
latter had kept it in his safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay
and Jose, Jr., which fact has been established in the decision of the Supreme Court at
the beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the
piece of cloth with which the envelope was wrapped (Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the
will (Exhibit B) was presented as secondary evidence for probate. It was disallowed by
this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court
remanded the case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on
January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was
discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had
been allowed to probate in the Amoy District Court, China, which is being also presented
by Silvino Suntay for allowance and recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria
Natividad Lim Billian and Silvino Suntay have no more interest in the properties left by
Jose B. Suntay, because they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment in the instant case,
because the proposition involved herein in the legalization of the lost will or the
allowance and recording of the will which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B.
Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was
executed and another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the
Philippines, had executed a will; such is the conclusion of the Supreme Court in its
decision (Exhibit O). That the will was snatched and it has never been produced in court
by those who snatched it, and consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by
Jose B. Suntay in the Philippines contained provisions which provided for equal
distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because it does not provide for equal distribution,
but if favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of
Atty. Alberto Barretto who declared that the first will which he drafted and reduced into a
plain copy was the will that was executed by Jose B. Suntay and placed inside the
envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of
Jose B. Suntay and it was snatched by, and, therefore, it had fallen into the hands of,
Manuel Suntay and the brothers of the first marriage, it stands to reason that said
Manuel Suntay and brothers would have been primarily interested in the production of
said will in court, for obvious reasons, namely, that they would have been favored. But it
was suppressed and "evidence willfully suppressed would be adverse if produced"
(Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first
will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit
A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted
by Atty. Alberto Barretto as identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style. He denied that the
insertions in long hand in the said draft are in his own handwriting; however, Judge
Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto
Barretto. But when Atty. Alberto Barretto was asked to show any manuscript of his for
purposes of comparison, he declined to do so alleging that he did not have any
document in his possession showing his handwriting notwithstanding the fact that he
was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. He further testified
that the first will be drafted contained four or five pages, but the second draft contained
twenty-three pages; that he declared in one breath that he did not read the will any more
when it was signed by the testator and the attesting witnesses because it would take up
much time, and in the same breath he declared that he checked it before it was signed;
and that he destroyed the draft of the first will which was in his own handwriting, but he
delivered the draft of the second will which he prepared to Jose B. Suntay in the
presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto
Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge
Anastacio Teodoro testified that he opened the sealed envelope when it was given to
him by Go Toh preparatory to the presentation of the petition for the probate of the said
will. As the lawyer entrusted with that task, he had to examine the will and have it copied
to be reproduced or appended to the petition. He could not do otherwise if he is worth
salt as a good lawyer; he could not perform the stunt of "blind flying" in the judicial
firmament. Every step must be taken with certainty and precision under any
circumstances. He could not have talked about the attorney's fees with Go Toh, unless
he has not examined the will beforehand. And, declaring that it was the exact draft of the
will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the
contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the
attesting witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of
the will in question, also testified on rebuttal that she saw the original will in the
possession of Manuel Suntay, immediately after the snatching. She read it and she
particularly remembers the manner in which the properties were to be distributed. Exhibit
B was shown to her on the witness stand and she declared that the provision regarding
the distribution of the properties in said Exhibit B is the same as that contained in the
original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty.
Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as
follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of
the same be established, and the will is proved to have been in existence at the time of
the death of the testator, or it is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded as other wills are filed
and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines the court may admit the testimony
of other witnesses to prove the sanity of the testator, and the due execution of the will;
and as evidence of the due execution of the will, it may admit proof of the handwriting of
the testator and of the subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go
Toh are still living. The former testified during the hearing, while Go Toh's deposition was
introduced in evidence which was admitted. In the absence of the testimony of Manuel
Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was
received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed;
that it was executed and valid and that it existed at the time of the death of Jose B.
Suntay. These circumstances also apply to the will (Exhibit P) which was executed in
Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B).
Granting that the will executed in the Philippines is non-existent as contended by the
oppositor, although the findings of this court is otherwise, the will executed and probated
in China should be allowed and recorded in this court. All the formalities of the law in
China had been followed in its execution, on account of which it was duly probated in the
Amoy District Court. There is no cogent reason, therefore, why it should not be admitted
and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the
will executed in the Philippines would not be allowed to probate, or as a corroborative
evidence that the will, the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the
Philippines and administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in
foreign country, according to the laws of such state, territory, or country, may be allowed,
filed, and recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in
the court having jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented for allowance."
This court has delved deep into the evidence adduced during the hearing with that
penetrating scrutiny in order to discovery the real facts; it had used unsparingly the
judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff.
All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and
disposing mind and not acting under duress or undue influence, executed the will which
is lost, the draft of which is Exhibit B, with all the necessary formalities prescribed by law.
He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly
probated in Amoy District Court,-a corroborative evidence that the testator really
executed the will. Copies of the said wills duly certified and under the seal of the court
are appended hereto, marked Exhibits B and P, and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares that
the draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the
deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the
case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on
September 29, 1948, promulgated the following resolution setting aside his first decision and
disallowing the wills sought to be probated by the petitioner in his alternative petition filed on
June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B.
Suntay and allowing and recording another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law
applicable thereto with the view of ascertaining whether or not the motion is well founded.
Both parties have presented extensive memoranda in support of their respective
contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the
same facts in this resolution, whether or not the facts established by the petitioner,
Silvino Suntay, warrant the legalization of the lost will and the allowance and recording
of the will that was executed in Amoy, China, is therefore, the subject of this instant
motion.
A. As to the legalization of the Lost Will. There is no question in the mind of this court
that the original will which Jose B. Suntay, deceased executed in the Philippines in the
year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced
by the petitioner during the hearing has established through the testimony of Judge
Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed
by Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of
legalizing an original and existing will, the evidence on record is sufficient as to the
execution and attesting in the manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it
appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator, and the due execution of
the will; and as evidence of the execution of the will, may admit proof of the handwriting
of the testator and of the subscribing witnesses, or any of them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will
is contested, all the subscribing witnesses present in the Philippines and not insane,
must be produced and examined, and the death, absence, or insanity of any of them
must be satisfactorily shown to the court. If all or some of the subscribing witnesses are
present in the Philippines, but outside the province where the will has been filed, their
deposition must be taken. If all or some of the subscribing witnesses produced and
examined testify against the due execution of the will, or do not remember having
attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court
is satisfied from the testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go
Toh. The last two witnesses are still living; the former testified against and the latter in
favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in
favor of the due execution of the will. Hence, the petitioner presented another witness,
Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana
Suntay was also presented as a witness in rebuttal evidence. The testimony of Go Toh
in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio
Teodoro who was able to examine the original will that was executed by Jose B. Suntay,
deceased, when it was given to him by Go Toh for the purpose of filing the petition in
court for its legalization, and could recognize the signatures of the testator as well as of
the three attesting witnesses on the said original will is sufficient to convince the court
that the original will was executed by the deceased Jose B. Suntay with all the
formalities required by law. The original will, therefore, if it was presented in court to
probate would be allowed to all legal intents and purposes. But it was not the original will
that was presented, because it was lost, but an alleged draft (Exhibit B) of the said
original will which does not bear the signature of the testator and any of the attesting
witness. The original will was duly executed with all the formalities required by law, but it
was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will whether or not the
draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost will and
allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be
proved as a lost will or destroyed will unless the execution and validity of the same be
established, and the will is proved to have been in existence at the time of the death of
the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the Judge, under the seal of
the court and the certificate must be filed and recorded as other wills are filed and
recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only
establish the execution and validity of the will, its existence at the time of the death of the
testator or its fraudulent and accidental destruction in the lifetime of the testator without
his knowledge, but also must prove its provisions clearly and distinctly by at least two
credible witnesses. The exact language of the clause in the above quoted provision of
the law is "nor unless its provisions are clearly and distinctly proved by at least two
credible witnesses." The legalization of a lost will is not so easy, therefore, as that of an
original will. The question, therefore, is boiled down to, and projected on the screen, in a
very sharp focus; namely, the execution and validity must be established and the
provisions must be clearly and distinctly proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the
rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been
clearly and distinctly proved by at least two credible witnesses? A careful review of the
evidence has revealed that at most the only credible witness who testified as to the
provisions of the will was Judge Anastacio Teodoro, and yet he testified on the
provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be
granted, however, that with or without the draft of the will (Exhibit B) in his hands, he
could have testified clearly and distinctly on the provisions of the said lost will, because
he had kept the will in his safe, in his office, for three days, after opening it, and he is
well versed in Spanish language in which the will as written. But did the attesting witness
Go Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost
will? He did not, and he could not have done so even if he tried because the original will
was not read to him nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said will, after its execution and
sealing inside the envelope (Exhibit A), read to him because it was opened only when
Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana
Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said
lost will because she has not had enough schooling and she does possess adequate
knowledge of the Spanish language as shown by the fact that she had to testify in
Tagalog on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and
validity of the lost will, yet he had not proved clearly and distinctly the provisions of the
will by at least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B.
Suntay, while he was residing in China during the remaining years of his life, executed
also a will, written in Chinese characters, the translation of which is marked Exhibit P. It
was allowed to probate in the District Court of Amoy, China. The question is whether or
not the said will should be allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed
in the United States, or any state or territory thereof, or in a foreign country, according to
the laws of such state, territory, or country, may be allowed, filed, and recorded by the
proper court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance
thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the
executor or other persons interested, in the Court having jurisdiction, such court shall fix
a time and place for the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance."
Sections 41 and 42 of Rule 123 provides 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. If the office in which the record is kept is within the United States
or its territory, the certificate may be made by a judge of a court of record of the district
or political subdivision in which the record is kept, authenticated by the seal of the court,
or may be made by any public officer having a seal of the office and having official duties
in the district or political subdivision in which the record is kept, authenticated by the seal
of his office. If the office in which the record is kept is in a foreign country, the certificate
may be made by a secretary of embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the United States stationed in
the foreign country in which the record is kept, and authenticated by the seal of his
office."
F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is
attested for the purpose of evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a
foreign country, according to the laws of such country, may be allowed, filed, and
recorded in the Court of First Instance of the province in which the testator has real or
personal estate on which such will may operate; but section 638 requires that the proof
of the authenticity of a will executed in a foreign country must be duly"authenticated".
Such authentication, considered as a foreign judicial record, is prescribed by section 304,
which requires the attestation of the clerk or of the legal keeper of the records with the
seal of the court annexed, if there be a seal, together with a certificate of the chief judge
or presiding magistrate that the signature of either of the functionaries attesting the will is
genuine, and, finally, the certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent
of the United States in such foreign country. And, should the will be considered, from an
administrative point of view, as a mere official document 'of a foreign country', it may be
proved, 'by the original, or by a copy certified by the legal keeper thereof, with a
certificate, under the seal of the country or sovereign, that the document is a valid and
subsisting document of such country, and that the copy is duly certified by the officer
having the legal custody of the original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that
the laws of West Virginia govern. To this end, there was submitted a copy of section
3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles
E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But
this was far from compliance with the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. The courts of the Philippine Islands are not authorized to take
judicial notice of the laws of the various States of the American Union. Such laws must
be proved as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the
requirements of the law were not met. There was not showing that the book from which
an extract was taken was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having charge of the original under
the seal of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of West
Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in
West Virginia and not in the Philippine Islands. The only evidence introduced to establish
this fact consisted of the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents discloses that a paper
writing purporting to be the last will and testament of Edward Randolph Hix, deceased,
was presented for probate on June 8, 1929, to the clerk of Randolph County, State of
West Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and
Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and
filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of
court of Randolph County, West Virginia, appointed Claude E. Maxwell as
administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased ... However this may be no attempt has been made to comply with the
provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing
on the question of the allowance of a will said to have been proved and allowed in West
Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly
done in accordance with the law of the Republic of China on the matter, is it necessary
to prove in this jurisdiction the existence of such law in China as a prerequisite to the
allowance and recording of said will? The answer is in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter
case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the
original, under the seal of the state or country. It may also be proved by an official copy
of the same published under the authority of the particular state and purporting to
contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are
as follows:
"SEC. 300. Printed laws of the State or Country. Books printed or published under the
authority of the United States, or one of the States of the United States, or a foreign
country, and purporting to contain statutes, codes, or other written law of such State or
country or proved to be commonly admitted in the tribunals of such State or country an
evidence of the written law thereof, are admissible in the Philippine Islands are evidence
of such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written law or other public
writing of any state or country, attested by the certificate of the officer having charge of
the original, under the seal of the state or country, is admissible as evidence of such law
or writing."
The petitioner has presented in evidence the certification of the Chinese Consul General,
Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the
execution and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P).
Is that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules
of the Rules of Court. Is the said certification of the Chinese Consul General in the
Philippines a substantial compliance with the provisions of the above mentioned section
41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul
General in the Philippines of the existence of the laws of Republic of China relative to
the execution and probate of a will executed in China. Such law may exist in China, but

"An official record or an entry therein, when admissible for any purpose, may be
evidence 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. ... If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent
or by any officer in the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office." (Sec. 41
of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in
this jurisdiction through the means prescribed by our Rules of Court. It is, therefore,
obvious that the Chinese Counsel General in the Philippines who certified as to the
existence of such law is not the officer having the legal custody of the record, nor is he a
deputy of such officer. And, if the office in which the record is kept is in a foreign country,
the certificate may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the
United States stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41)
not having been complied with, the doubt of this court has been dissipated, and it is of
the opinion and so holds that the certification of the Chinese Consul General alone is not
admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in
China, but resided in the Philippines for a long time, has become a Filipino citizen by
naturalization, or he remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his permanent domicile
from the Philippines to Amoy, China. His change of permanent domicile could only be
inferred. But the question of his permanent domicile pales into insignificance in view of
the overtowering fact that the law of China pertinent to the allowance and recording of
the said will in this jurisdiction has been satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective
memorandum and in the oral argument in behalf of the oppositor the question of
estoppel. The consideration of the points raised by them would open the door to the
appreciation of the intrinsic validity of the provisions of the will which is not of moment at
the present stage of the proceeding. While the probate of a will is conclusive as to the
compliance with all formal requisites necessary to the lawful execution of the will, such
probate does not affect the intrinsic validity of the provisions of the will. With respect to
the latter the will in governed by the substantive law relative to descent and distribution.
(In re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision
rendered in this case allowing the will (Exhibit B) and allowing and recording the foreign
will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two
wills should be, as they are hereby disallowed. Without special pronouncement as to
costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan
"reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole
question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the
legalization of the lost will and allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised on the ground that "although the
petitioner has established the execution and validity of the lost will, yet he has not proved clearly
and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming
that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the
Republic of China, the certification of the Chinese Consul General in the Philippines as the
existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on
the motion for reconsideration promulgated by the trial court, and the decision of the majority
herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of
the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses
Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of
the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at
least two witnesses." That this requirement was obviously construed, to mean that the exact
provisions are to be established, may be deduced from the following dialogue between his
Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new counsel for oppositor
Federico C. Suntay, who appeared for the first time at the ex parte hearing of the oppositor's
motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of
the lost will must be distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the
will from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly
established by two credible witnesses so that the Court could state that in the decision,
we agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to
establish the contents of a lost or destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the disposition of the testator's properties;
and this is especially necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his
"most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and
distinctly proved by at least two credible witnesses before it can be admitted to probate;
but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and
its spirit is complied with by holding that it applies only to those provisions which affect
the disposition of the testator's property and which are of the substance of the will.
The allegations of the contents of the will are general, and under ordinary circumstances,
would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize
the establishment of the will so far as its bequests are concerned. To require that a copy
of the will or the language of the bequests, in detail, should be pleaded, where no copy
has been preserved, and where the memory of the witnesses does not hold the exact
words, would not only deny the substance for mere form, but would offer a premium
upon the rascality of one whose interests might suggest the destruction of a will. As said
in Anderson vs.Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed
without the fault of the defendant in error ... and there not appearing to be any copy of it
in existence, it would be equivalent to denying the complainant relief altogether to
require her to prove the very terms in which it was conceived. All that could reasonably
be required of her under the circumstances could be to show in general terms the
disposition which the testator made of his property by the instruments; that it purported
to be his will and was duly attested by the requisite number of witnesses." In
Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent of
proof required in such a case:" nor is there any just ground to object to the proof
because the witnesses have not given the language of the will or the substance
thereof. They have given the substance of the different devises as to the property or
interest devised, and to whom devised and we would not stop, in the case of a destroyed
will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the
substance of its provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing,
except as it may be presumed, under the maxim Omnia preasumuntur in odium
spoliateris." There was evidence tending to show that the second will of Anne Lambie
was in the possession of Francis Lambie, and that it came to the hands of the
proponents, warranting the inference that it has been suppressed or destroyed. If from
this evidence the jury found such paper destroyed the law permits the presumption that it
was legally drawn and executed, notwithstanding the terms of the statute, which requires
the revoking instrument to be formally executed. If a will be lost, secondary evidence
may be given of its contents; if suppressed or destroyed, the same is true; and, if
necessary the law will prevent the perpetration of a fraud by permitting a presumption to
supply the suppressed proof. We cannot assent to the proposition that the statute is so
right as to be the wrongdoer's most effective weapons. The misconduct once established
to the satisfaction of the jury, it is no hardship to the wrongdoer to say. "Produce the
evidence in your possession, or we will presume that your opponent's contention is true."
When one deliberately destroys, or purposely induces another to destroy, a written
instrument subsequently become a matter of judicial inquiry between the spoliator and
an innocent party, the latter will not be required to make strict proof of the contents of
such instrument in order to establish a right founded thereon. Brook, Leg. Max. 576,
Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the petitioner and the widow Lim
Billian, we have no hesitancy in holding the view that the dispositions of the properties left by
the deceased Jose B. Suntay is provided in his will which was lost or snatched in the manner
recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had
been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and
Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit
"B", and even by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to
the presentation of the petition for the probate of the said will. As the lawyer entrusted with that
task, he had to examine the will and have it copied to be reproduced or appended to the petition.
He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the
stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty and
precision under any circumstances. He could not have talked about the attorney's fees with Go
Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he
did not hesitate in declaring that it was the exact draft of the will that was inside the envelope
(Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration
the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge
Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he
observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot
see any justifying for the observation, assuming that Judge Teodoro consulted the draft, since
even the trial Judge granted that he "could have testified clearly and distinctly on the provisions
of the said lost will, because he had kept the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language in which the will was written." As a matter
of fact, however, it is not true that Judge Teodoro had the draft in question before him while
testifying as may be seen from the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents
of the will, because according to the Supreme Court, and that is a fact already decided,
that the will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one
fighting for the postponement of the hearing of the intestate case because I was asked
by Don Alberto Barretto to secure the postponement until the will that was executed by
the deceased is sent here by the widow from China, with whom we communicated with
several letters, and when the will arrived. I had to check the facts as appearing in the will,
and examined fully in connection with the facts alleged in the intestate, and there was a
striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the
questions of Atty. Recto, it seems that the answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness
would relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any
testimony that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he has not finished the
sentence, and I want to ask the Court just to allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether
the value of the estate left by the deceased was SIXTY THOUSAND PESOS
(P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the
original will, I found out that it was several hundred thousand pesos, several thousands
of pesos, hundreds of pesos, that was very striking fact to me because the petition for
intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it
was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the will?
"A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son,
Silvino, the only son in the second marriage, that was very important for me to know.
Q. How were the properties distributed according to that will?- "A. The properties were
distributed into three (3) parts, one part which we call legitima corta, were equally
distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the
second marriage with Maria Natividad Lim Billian. The other third, the betterment was
given to four (4) children, Concepcion, and Apolonio getting a quiet substantial share in
the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the
amount of SEVENTY THOUSAND (70,000,00) PESOS or little over, and then about
ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose equal to Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage?
" A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the
widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection with
that particular of the usufruct of the widow? "A. It was somewhat incorporated into the
assets of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? "A. Twenty-
three (23) pages.
Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was
signed.
Q. And the foot of the testament or the end of the testament, was it signed by the
testator? "A. Yes, sir, and the attestation clause was the last page signed by the three
instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my
former Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses signed on the different pages of the will? "A.
Yes, sir, they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and
which document appears already attached to this same testamentary proceedings and
already marked as EXHIBIT B, will you please tell the Court if and for instance on page
eight (8) of this document, pagina octavo, it says, there are handwritings in pencil, some
of which read as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano",
can you recognize whose handwriting is that? "A. From my best estimate it is the
handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document
Exhibit B, there is also the handwriting in pencil which reads: "La otra sexta parte (6.a)
corresponde a Bonifacio Lopez", can you recognize that handwriting? "A. Yes, sir,
this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the
Court to compare letter "B" which is in capital letter with the signature of Don Alberto
Barretto in the envelope, "Alberto Barretto" and stroke identifies one hand as having
written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three
(23) pages and please tell the Court if this document had anything to do with the will
which according to you was contained in the envelope, Exhibit A? "A. This is exactly
the contents of the original will which I received and kept in my office inside the safe for
three (3) days, and I precisely took special case in the credits left by the deceased, and I
remember among them, were the De Leon family, and Sandiko, well known to me, and
then the disposition of the estate, divided into three (3) equal parts, and I noticed that
they are the contents of the will read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge
Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition
(Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did
not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could
not have done so even if he tried because the original will was not read to him nor by him before
or at the signing of the same. It was written in Spanish and he did not and does not understand
the Spanish language. Neither was there any occasion for him to have the contents of the said
will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was
opened only when Judge Teodoro had examined it and then subsequently snatched from Go
Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April
17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates
among children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6)
after paying his debts he will have approximately 720,000 pesos left. This amount will be
divided into three equal parts of 240,000 pesos each. The first part is to be divided
equally among the ten children born by the first and second wives and the second part
among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000
pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately.
The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get
approximately 110,000 pesos. Silvino Suntay will get a total of 210,000 pesos
approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and
Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay
will get 60,000 pesos each approximately. The rest of the children will get approximately
29,000 each. The way of distribution of the property of Jose B. Suntay, movable and
immovable, and the outstanding debts to be collected was arranged by Jose B. Suntay.
x x x x x x x x x
78. On the occasion of the execution of the testament of Jose B. Suntay, state whether
or not you say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and
the testament the first time you saw them on that occasion. ... Yes, I know who had
possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later
on, on that same occasion? ... He got them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. ... Alberto
Barretto gave the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at
the time of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said, "You had better see if
you want any correction."
84. What did Mr. Suntay do after those documents were given to him? ... Jose B.
Suntay looked at them and then gave one copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. ...
Yes.
86. In the affirmative case, can you say which of the two documents was given and who
the man was? ... Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of
those documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man?
... He told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him.
... He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay
looked at the original and checked them.
91. What was done with those documents later on if there was anything done with them?
... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original
signed and executed.
92. What was done with the testament of Jose B. Suntay after it was signed by the
testator and its witnesses? ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the will? "A. It is about the distribution of the
property to the heirs.
Q. Did you know how the property was distributed according to the will? "A. I know
that more than P500,000 was for the widow and her son, more than P100,000 for the
heirs that are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written
in Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will
was written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? A.
No, sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of
the signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? ... I know a little
Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D,
D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings:
"Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will
in question, also testified on rebuttal that she saw the original will in the possession of Manuel
Suntay immediately after the snatching. She read it and she particularly remembers the manner
in which the properties were to be distributed. Exhibit B was shown to her on the witness stand
and she declared that the provision regarding the distribution of the properties in said Exhibit B
is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies
the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the
trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly
the provisions of the said lost will, because she has not had enough schooling and she does not
possess adequate knowledge of the Spanish language as shown by the fact that she had to
testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in
reversing his views as regards Ana's testimony, is revealed readily in the following portions of
the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? "R.
Probablemente seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que
mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia
mia.
P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para
asegurarme a que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del
alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto
padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros
diez (1) hijos en primeros nupcias y segunda nupcia, la segunda tercera parte los
adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como
mejora a Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en
ese documento que se distribuia las propiedades del defundo padre usted como usted
relata aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle
solamente se fijo en la parte como se distribuian las propiedades pero no ha dicho la
testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba
escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo
personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo
la distribucion en aquel supuesto testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin
embargo no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el
espaol bastante hasta el punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo,
usted poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos
ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo
nuestro estudio.
P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el
castelano? "R. Unos cuatro o cinco aos.
P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano
sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o
sin el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso
quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n.
pp. 533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the
trial Judge reversed his first decision, particularly when he announced therein that "it is now
incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased,
left a will (the draft of which is Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into account the various
circumstancial features presently to be stated, that clearly confirm the testimony of Judge
Anastacio Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's
desire to frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft
of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to
the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be
"identical in substance and form to the second draft which he prepared in typewriting." Indeed,
all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in
Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge
Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for
new trial), should control, not only because it is in accordance with the evidence but because
the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse
his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses
for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in final form, and was thought of
merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in
the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his
heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the will
would not have been "snatched" from Go Toh and the loss certainly cannot be imputed to the
widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to
petitioner's and his mother's claim for greater inheritance or participation under the lost will; and
the envelope containing the first will providing for equal shares, would not have been entrusted
to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and
Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their
answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only
to put into effect the testamentary disposition and wishes of their late father." This attitude is
significantly an indication of the justness of petitioner's claim, because it would have been to
their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal
inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each
of the Suntay children would receive only some P 25,000.00, whereas in case of intestacy or
under the alleged will providing for equal shares, each of them would receive some
P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to
give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is
there of an man's desire or insistence to express his last wishes than the execution of a will
reiterating the same provisions contained in an earlier will. Assuming that the Chinese will
cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be
ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim
Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner
as to the contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad
Lim Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the
most favored in the will, so when they sold that, they sold everything, they are selling
everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the
first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed
by Jose Suntay only to P10,000.00, in addition to properties in China value at P15,000.00, the
fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would
normally not be done by any law practitioner. Upon the other hand, there is evidence to the
effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian
in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only
P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid
by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in
the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty.
Barretto's needs. This circumstances perhaps further explains why the latter had to support the
side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the
deceased Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly
recited therein and by the force and accuracy of its logic would amply show the weakness and
utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at
length pertinent portions of the testimony of various witnesses to demonstrate more plainly the
plausibility of the original decision of Judge Pecson, and the latter's consequent bad judgment in
having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have
mistakenly commended. We have found this to be one of the cases of this court in which we
have had occasion to participate, where there can be absolutely no doubt as to the result
outright reversal for which, with due respect to the majority opinion, we vote without
hesitancy.
Montemayor and Jugo, JJ., concur.