In Re Estate of Johnson PDF

3/18/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME039
[No.12767.November16,1918.]
In the matter of the ,estate of EMIL H. JOHNSON. EBBA

INGEBORGJOHNSON,applicantandappellant.
1. WILLSPROBATEPUBLICATIONOFNOTICE.Whereawill
is duly probated after publication pursuant to section 630 of the
Code of Civil Procedure, the order admitting the will is, in the
absence
157
VOL.39,NOVEMBER16,1918. 157
InreEstateofJohnson.
offraud,effectiveagainstallpersons.Thefactthatanheirorother
interestedpartylivessofarawayastomakeitimpossibleforsuch
partytobepresentatthedateappointedfortheprobateofthewill
doesnotrendertheorderofprobatevoidforlackofdueprocess.
2. ID. ID. APPLICATION TO SET PROBATE ASIDE.Under

section113oftheCodeofCivilProcedureacourthastheauthority
upon timely application of any interested party to set aside the
probateofawillandgrantarehearing,whereapropercaseforthe
exerciseofthispowerismadetoappearintheapplication.
3. ID. AMERICAN CITIZEN RESIDING IN PHILIPPINE

ISLANDS.Theauthorityexpressedinsection636oftheCodeof
Civil Procedure for the probate of the will of a citizen of another
stateorcountryisapplicabletothecaseofacitizenofaStateofthe
AmericanUniondomiciledinthePhilippineIslands.
4. STATUTES INTERPRETATION PUNCTUATION AND

CAPITALIZATION.It is a rule of hermeneutics that punctuation
andcapitalizationareaidsoflowdegreeininterpretingthelanguage
ofastatuteandcannevercontrolagainsttheintelligiblemeaningof
thewrittenwords.
5. ID.ID.EPIGRAPH.Theepigraph,orheading,ofasectionofa
statute,beingnothingmorethanaconvenientindextothecontents
http://www.central.com.ph/sfsreader/session/0000015ae1ae85883c8aaf26003600fb002c009e/t/?o=False 1/16
of the Section, cannot have the effect of limiting the operative

wordscontainedinthebodyofthetext.
6. WlLLS CONCLUSIVENESS OF PROBATE INTRINSIC

VALIDITY.While the probate of a will is conclusive as to
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 is governed by the substantive law relative to descent and
distribution.
7. ID.ID.ID.WILLOFAMERICANCITIZEN.Theintrinsic
validity of the provisions of the will of a citizen of one of the
American States, proved under section 636 of the Code of Civil
Procedure, is governed by the laws of the State of which he is a
citizen.
8. CITIZENSHIP AMERICANS RESIDENT IN PHILIPPINE

ISLANDS.When a person who is a citizen of the United States
and therefore also a citizen of the State in which he was born or
naturalized becomes a resident of the Philippine Islands, he cannot
acquireanewcitizenshiphereandhemustbeassumedtoretainhis
State citizenship along with his status as a citizen of "the United
States.
9. EVIDENCEJUDICIAL NOTICE.The courts of the Philippine

Islands are not authorized to take judicial notice of the laws of the
various States of the American Union, although they may take
judicialnoticeofthelawsenactedbyCongress.
158
158 PHILIPPINEREPORTSANNOTATED
APPEAL from an order of the Court of First Instance of Manila.

Harvey,J.
Thefactsarestatedintheopinionofthecourt.
Hartigan&Welchforapplicantandappellant.
HartfordBeaumontforVictorJohnsonandothersasappellees.
Chas.E.TenneyforAlejandraIbaezdeJohnson,personallyand
asguardian,andforSimeonaIbaez,appellees.
STREET,J.:
On February 4, 1916, Emil H. Johnson, a native of Sweden and a

naturalized citizen of the United States, died in the city of Manila,
leavingawill,datedSeptember9,1915,bywhichhedisposedofan
estate,thevalueofwhich,asestimatedbyhim,wasP231,800.This
document is an holographic instrument, being written in the
testator's own handwriting, and is signed by himself and two
witnessesonly,insteadofthreewitnessesrequiredbysection618of
theCodeofCivilProcedure.Thiswill,therefore,wasnotexecuted
in conformity with the provisions of law generally applicable to
willsexecutedbyinhabitantsoftheseIslands,andhencecouldnot
havebeenprovedundersection618.
On February 9, 1916, however, a petition was presented in the
CourtofFirstInstanceofthecityofManilafortheprobateofthis
will, on the ground that Johnson was at the time of his death a
citizenoftheStateofIllinois,UnitedStatesofAmericathatthewill
was duly executed in accordance with the laws of that State and
hencecouldproperlybeprobatedherepursuanttosection636ofthe
CodeofCivilProcedure.Thissectionreadsasfollows:.
"Will made here by alien.A will made within the Philippine
Islandsbyacitizenorsubjectofanotherstateorcountry,whichis
executedinaccordancewiththelawofthestateorcountryofwhich
heisacitizenorsubject,andwhichmightbeprovedandallowedby
thelawofhis
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own state or country, may be proved, allowed, and recorded in the

Philippine Islands, and shall have the same effect as if executed
accordingtothelawsoftheseIslands."
ThehearingonsaidapplicationwassetforMarch6,1916,and
threeweekspublicationofnoticewasorderedinthe"ManilaDaily
Bulletin." Due publication was made pursuant to this order of the
court. On March 6, 1916, witnesses were examined relative to the
executionofthewillanduponMarch16ththereafterthedocument
wasdeclaredtobelegalandwasadmittedtoprobate.Atthesame
time an order was made nominating Victor Johnson and John T.
Pickettasadministratorsoftheestate,withthewillannexed.Shortly
thereafter Pickett signified his desire not to serve, and Victor
Johnsonwasappointedsoleadministrator.
BythewillinquestionthetestatorgivestohisbrotherVictorone
hundred shares of the corporate stock in the JohnsonPickett Rope
CompanytohisfatherandmotherinSweden,thesumofP20,000
to his daughter Ebba Ingeborg, the sum of P5,000. to his wife,
AlejandraIbaez,thesumofP75permonth,ifsheremainssingle
to Simeona Ibaez, spinster, P65 per month, if she remains single.
The rest of the property is left to the testator's five children
Mercedes,Encarnacion,Victor,EleonorandAlberto.
The biographical facts relative to the deceased necessary to an

understanding of the case are these: Emil H. Johnson was born in
Sweden, May 25, 1877, from which country he emigrated to the
UnitedStatesandlivedinChicago,Illinois,from1893to1898.On
May9,1898,atChicago,hewasmarriedtoRosalieAckeson,and.
immediately thereafter embarked for the Philippine Islands as a
soldier in the Army of the United States. As a result of relations
between Johnson and Rosalie Ackeson a daughter, named Ebba
Ingeborg, was born a few months after their marriage. This child
was christened in Chicago by a pastor of the Swedish Lutheran
ChurchuponOctober16,1898.
160
After Johnson was discharged as a soldier from the service of the

UnitedStateshecontinuedtoliveinthePhilippineIslands,andon
November20,1902,thewife,RosalieJohnson,wasgrantedadecree
ofdivorcefromhimintheCircuitCourtofCookCounty,Illinois,on
thegroundofdesertion.AlittlelaterJohnsonappearedintheUnited
StatesonavisitandonJanuary10,1903,procuredacertificateof
naturalizationatChicago.FromChicagoheappearstohavegoneto
Sweden,whereaphotograph,exhibitedinevidenceinthiscase,was
takeninwhichheappearedinagroupwithhisfather,mother,and
the little daughter, Ebba Ingeborg, who was then living with her
grandparents in Sweden. When this visit was concluded, the
deceased returned to Manila, where he prospered in business and
continuedtoliveuntilhisdeath.
Inthiscityheappearstohaveenteredintomaritalrelationswith
AlejandraIbaez,bywhomhehadthreechildren,towit,Mercedes,
baptizedMay31,1903Encarnacion,baptizedApril29,1906and
Victor, baptized December 9, 1907. The other two children
mentioned in the will were borne to the deceased by Simeona
Ibaez.
OnJune12,1916,oraboutthreemonthsafterthewillhadbeen
probated, the attorneys for Ebba Ingeborg Johnson entered an
appearance in her behalf and noted an exception to the order
admitting the will to probate. On October 31, 1916, the same
attorneysmovedthecourttovacatetheorderofMarch16andalso
variousotherordersinthecase.OnFebruary20,1917,thismotion
wasdenied,andfromthisactionofthetrialcourtthepresentappeal
hasbeenperfected.
Aswillbediscerned,thepurposeoftheproceedingonbehalfof
thepetitioneristoannulthedecreeofprobateandputtheestateinto
intestate administration, thus preparing the way for the
establishment of the claim of the petitioner as the sole legitimate

heirofherfather.
Thegroundsuponwhichthepetitionerseekstoavoidtheprobate
arefourinnumberandmaybestated,inthe
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samesequenceinwhichtheyaresetforthinthepetition,asfollows:
(1) Emil H. Johnson was a resident of the city of Manila and

notaresidentoftheStateofIllinoisatthetimethewillin
questionwasexecuted
(2) Thewillisinvalidandinadequatetopassrealandpersonal
propertyintheStateofIllinois
(3) The order admitting the will to probate was made without
noticetothepetitionerand
(4) The order in question was beyond the jurisdiction of the
court.
Itcannotofcoursebemaintainedthatacourtoffirstinstancelacks
essential jurisdiction over the probate of wills. The fourth
propositionabovestatedmust,accordingly,beinterpretedinrelation
with the third and must be considered as a corollary deduced from
the latter. Moreover, both the third and fourth grounds stated take
precedence,byreasonoftheirmorefundamentalimplications,over
the first two and a logical exposition of the contentions of the
petitionerisexpressedinthetwofollowingpropositions:
"(I) The order admitting the will to probate was beyond the
jurisdiction of the court and void because made without
noticetothepetitioner
"(II) Thejudgmentfromwhichthepetitionerseeksreliefshould
be set aside because the testator was not a resident of the
StateofIllinoisandthewillwasnotinconformitywiththe
lawsofthatState."
Inthediscussionwhichistofollowweshallconsidertheproblems
arising in this case in the order last above indicated. Upon the
question,then,ofthejurisdictionofthecourt,itisapparentfroman
inspectionoftherecordoftheproceedingsinthecourtbelowthatall
thestepsprescribedbylawasprerequisitestotheprobateofawill
were complied with in every respect and that the probate was
effectedinexternalconformitywithalllegal
162
requirements.Thismuchisunquestioned.Itis,however,pointedout
intheargumentsubmittedinbehalfofthepetitioner,that,atthetime
thecourtmadetheorderofpublication,itwasapprisedofthefact
thatthepetitionerlivedintheUnitedStatesandthatasdaughterand
heir she was necessarily interested in the probate of the will. It is,
therefore,insistedthatthecourtshouldhaveappointedadateforthe
probate of the will sufficiently far in the future to permit the
petitionertobepresenteitherinpersonorbyrepresentationanditis
saidthatthefailureofthecourtthustopostponetheprobateofthe
will constitutes an infringement of that provision of the Philippine
Bill which declares that property shall not be taken without due
processoflaw.
Onthispointweareoftheopinionthattheproceedingsforthe
probate of the will were regular and that the publication was
sufficient to give the court jurisdiction to entertain the proceeding
andtoallowthewilltobeprobated.
AswassaidinthecaseofInreDavis(139Cal.,590,596),"the
proceedingastotheprobateofawillisessentiallyoneinrem, and
in the very nature of things the state is allowed a wide latitude in
determining the character of the constructive notice to be given to
the world in a proceeding where it has absolute possession of the
res.Itwouldbeanexceptionalcasewhereacourtwoulddeclarea
statutevoid,asdeprivingapartyofhispropertywithoutdueprocess
of law, the proceeding being strictly inrem, and the res within the
state,uponthegroundthattheconstructivenoticeprescribedbythe
statutewasunreasonablyshort."
In that case the petitioner had been domiciled in the Hawaiian
Islandsatthetimeofthetestator'sdeathanditwasimpossible,in
viewofthedistanceandmeansofcommunicationthenexisting,for
thepetitionertoappearandopposetheprobateonthedaysetforthe
hearinginCalifornia.Itwasneverthelessheldthatpublicationinthe
163
manner prescribed by statute constituted due process of law. (See

EstateofDavis,151Cal.,318Tracyvs.Muir,151Cal.,363.)
IntheDaviscase(136Cal,590)thecourtcommenteduponthe
factthat,underthelawsofCalifornia,thepetitionerhadafullyear
within which she might have instituted a proceeding to contest the
will and this was stated as one of the reasons for holding that
publication in the manner provided by statute was sufficient. The
samecircumstancewascommenteduponinO'Callaghanvs.O'Brien
(199U.S.,89),decidedintheSupremeCourtoftheUnitedStates.
This case arose under the laws of the State of Washington, and it
wasallegedthatawillhadbeenthereprobatedwithoutthenoticeof
applicationforprobatehavingbeengivenasrequiredbylaw.Itwas
insistedthatthiswasaninfringementoftheFourteenthAmendment
of the Constitution of the United States. This contention was,
however,rejectedanditwasheldthatthestatutoryrighttocontest
the will within a year was a complete refutation of the argument
foundedontheideaofaviolationofthedueprocessprovision.
The laws of these Islands, in contrast with the laws in force in
perhapsalloftheStatesoftheAmericanUnion,containnospecial
provision, other than that allowing an appeal in the probate
proceedings,underwhichreliefofanysortcanbeobtainedfroman
orderofacourtoffirstinstanceimproperlyallowingordisallowing
a will. We do, however, have a provision of a general nature
authorizing a court under certain circumstances to set aside any
judgment, order, or other proceeding whatever. This provision is
foundinsection113oftheCodeofCivilProcedure,whichreadsas
follows:
"Uponsuchtermsasmaybejustthecourtmayrelieveapartyor
hislegalrepresentativefromajudgment,order,orotherproceeding
taken against him through his mistake, inadvertence, surprise or
excusableneglectPro
164
vided, That application therefor be made within a reasonable time,

butinnocaseexceedingsixmonthsaftersuchjudgment,order,or
proceedingwastaken."
Theuseoftheword"judgment,orderorotherproceeding"inthis
sectionindicatesanintentiononthepartoftheLegislaturetogivea
wide latitude to the remedy here provided, and in our opinion its
operation is not to be restricted to judgments or orders entered in
ordinary contentious litigation where a plaintiff impleads a
defendantandbringshimintocourtbypersonalserviceofprocess.
In other words the utility of the provision is not limited to actions
properbutextendstoallsortsofjudicialproceedings.
InthesecondsectionoftheCodeofCivilProcedureitisdeclared
that the provisions of this Code shall be liberally construed to
promote its object and to assist the parties in obtaining speedy
justice.Wethinkthattheintentionthusexhibitedshouldbeapplied
in the interpretation of section 113 and we hold that the word
"party,"usedinthissection,meansanypersonhavinganinterestin
the subject matter of the proceeding who is in a position to be

concludedbythejudgment,order,orotherproceedingtaken.
The petitioner, therefore, in this case could have applied, under
the section cited, at any time within six months from March 16,
1916,anduponshowingthatshehadbeenprecludedfromappearing
in the probate proceedings by conditions over which she had no
control and that the order admitting the will to probate had been
erroneouslyentereduponinsufficientprooforuponasupposedstate
offactscontrarytothetruth,thecourtwouldhavebeenauthorized
tosettheprobateasideandgrantarehearing.Itisnodoubttruethat
sixmonthswas,underthecircumstances,averyshortperiodoftime
within which to expect the petitioner to appear and be prepared to
contesttheprobatewiththeproofwhichshemighthavedesiredto
collectfromremotecountries.Neverthe
165
less, although the time allowed for the making of such application
wasinconvenientlyshort,theremedyexistedandthepossibilityof
its use is proved in this case by the circumstance that on June 12,
1916, she in fact here appeared in court by her attorneys and
exceptedtotheorderadmittingthewilltoprobate.
It resultsthat,inconformity with the doctrine announced in the
Davis case, above cited, the proceedings in the court below were
conductedinsuchmannerastoconstitutedueprocessoflaw.The
lawsuppliedaremedybywhichthepetitionermighthavegottena
hearing and have obtained relief from the order by which she is
supposedtohavebeeninjuredandthoughtheperiodwithinwhich
the application should have been made was short, the remedy was
bothpossibleandpracticable.
From what has been said it follows that the order of March 16,
1916, admitting the will of Emil H. Johnson to probate cannot be
declared null and void merely because the petitioner was
unavoidablypreventedfromappearingattheoriginalhearingupon
thematteroftheprobateofthewillinquestion.Whethertheresult
wouldhavebeenthesameifoursystemofprocedurehadcontained
nosuchprovisionasthatexpressedinsection113isamatterwhich
weneednothereconsider.
Intimatelyconnectedwiththequestionofthejurisdictionofthe
court, is another matter which may be properly discussed at this
juncture.Thisrelatestotheinterpretationtobeplaceduponsection
636 of the Code of Civil Procedure. The position is taken by the
appellantthatthissectionisapplicableonlytowillsofaliensandin
thisconnectionattentionisdirectedtothefactthattheepigraphof
thissectionspeaksonlyofthewillmadeherebyanalienandtothe
further fact that the word "state" in the body of the section is not
capitalized.Fromthisitisarguedthatsection636isnotapplicable
tothewillofacitizenoftheUnitedStatesresidingintheseIslands.
166
Weconsiderthesesuggestionsoflittleweightandareoftheopinion
that, by the most reasonable interpretation of the language used in
thestatute,thewords"anotherstateorcountry"includetheUnited
StatesandtheStatesoftheAmericanUnion,andthattheoperation
of the statute is not limited to wills of aliens. It is a rule of
hermeneutics that punctuation and capitalization are aids of low
degreeininterpretingthelanguageofastatuteandcannevercontrol
against the intelligible meaning of the written words. Furthermore,
the epigraph, or heading, of a section, being nothing more than a
convenient index to the contents of the provision, cannot have the
effect of limiting the operative words contained in the body of the
text.ItresultsthatifEmilH.Johnsonwasatthetimeofhisdeatha
citizenoftheUnitedStatesandoftheStateofIllinois,hiswillwas
provable under this section in the courts of the Philippine Islands,
provided the instrument was so executed as to be admissible to
probateunderthelawsoftheStateofIllinois.
Wearethusbroughttoconsiderthesecondprincipalproposition
stated at the outset of this discussion, which raises the question
whethertheorderofprobatecanbesetasideinthisproceedingon
theothergroundstatedinthepetition,namely,thatthetestatorwas
notaresidentoftheStateofIllinoisandthatthewillwasnotmade
inconformitywiththelawsofthatState.
The order of the Court of First Instance admitting the will to
probaterecites,amongotherthings:
"ThatuponthedatewhenthewillinquestionwasexecutedEmil
H. Johnson was a citizen of the United States, naturalized in the
StateofIllinois,CountyofCook,andthatthewillinquestionwas
executedinconformitywiththedispositionsofthelawoftheState
of.Illinois."
Weconsiderthisequivalenttoafindingthatuponthedateofthe
executionofthewillthetestatorwasacitizenoftheStateofIllinois
and that the will was executed in conformity with the laws of that
State.Uponthelast
167
pointthefindingisexpressandinouropinionthestatementthatthe
testatorwasacitizenoftheUnitedStates,naturalizedintheStateof
Illinois,shouldbetakentoimplythathewasacitizenoftheStateof
Illinois,aswellasoftheUnitedStates.
The naturalization laws of the United States require, as a
condition precedent to the granting of the certificate of
naturalization, that the applicant should have resided at least five
years in the United States and for one year within the State or
territory where the court granting the naturalization papers is held
and in the absence of clear proof to the contrary it should be
presumed that a person naturalized in a court of a certain State
thereby becomes a citizen of that State as well as of the United
States.
In this connection it should be remembered that the Fourteenth
AmendmenttotheConstitutionoftheUnitedStatesdeclares,inits
openingwords,thatallpersonsnaturalizedintheUnitedStates,and
subject to the jurisdiction thereof, are citizens of the United States
andoftheStatewhereintheyreside.
It is noteworthy that the petition by which it is sought to annul
the probate of this will does notassert that the testator was not a
citizenofIllinoisatthedatewhenthewillwasexecuted.Themost
thatissaidonthispointishewas"neveraresidentoftheStateof
Illinoisaftertheyear1898,butbecameandwasaresidentofthecity
ofManila,"etc.ButresidenceinthePhilippineIslandsiscompatible
with citizenship in Illinois and it must be considered that the
allegations of the petition on this point are, considered in their
bearing as an attempt to refute citizenship in Illinois, wholly
insufficient.
AstheCourtofFirstInstancefoundthatthetestatorwasacitizen
oftheStateofIllinoisandthatthewillwasexecutedinconformity
with the laws of that State, the will was necessarily and properly
admitted to probate. And how is it possible to evade the effect of
thesefindings?
168
Insection625oftheCodeofCivilProcedureitisdeclaredthat"the
allowancebythecourtofawillofrealorpersonalpropertyshallbe
conclusiveastoitsdueexecution."
The due execution of a will involves conditions relating to a
number of matters, such as the age and mental capacity of the
testator,thesigningofthedocumentbythetestator,orbysomeone
inhisbehalf,andtheacknowledgmentoftheinstrumentbyhimin
the presence of the required number of witnesses who affix their
signatures to the will to attest the act. The proof of all these
requisitesisinvolvedintheprobateandastoeachandallofthem
theprobateisconclusive.(Castaedavs.Alemany,3Phil.Rep.,426
Pimentelvs.Palanca,5Phil.Rep.,436ChiongJocSoyvs.Vao,8
Phil.Rep.,119Sanchezvs.Pascual,11Phil.Rep.,395Montaano
vs.Suesa,14Phil.Rep.,676.)
Ourreportedcasesdonotcontaintheslightestintimationthata
will which has been probated according to law, and without fraud,
can be annulled, in any other proceeding whatever, on account of
anysupposedirregularityordefectintheexecutionofthewilloron
account of any error in the action of the court upon the proof
adduced before it. This court has never been called upon to decide
whether,incasetheprobateofawillshouldbeprocuredbyfraud,
relief could be granted in some other proceeding and no such
question is now presented. But it is readily seen that if fraud were
alleged,thiswouldintroduceanentirelydifferentfactorinthecase.
InAustriavs.Ventenilla(21Phil.Rep.,180,184),itwassuggested
butnotdecidedthatreliefmightbegrantedincasetheprobateofa
willwereprocuredbyfraud.
Thecircumstancethatthejudgmentofthetrialcourtrecitesthat
thewillwasexecutedinconformitywiththelawofIllinoisandalso,
in effect, that the testator was a citizen of that State places the
judgmentuponanunas
169
sailablebasissofarasanysupposederrorapparentuponthefaceof
thejudgmentisconcerned.Itis,however,probablethatevenifthe
judgmenthadnotcontainedtheserecitals,therewouldhavebeena
presumptionfromtheadmissionofthewilltoprobateasthewillof
a citizen of Illinois that the facts were as recited in the order of
probate.
AswassaidbythiscourtinthecaseofBancoEspaolFilipino
vs.Palanca(37Phil.Rep.,921),"Thereisnoprincipleoflawbetter
settledthanthatafterjurisdictionhasoncebeenacquired,everyact
of a court of general jurisdiction shall be presumed to have been
rightly done. This rule is applied to every judgment or decree
rendered in the various stages of the proceedings from their
initiation to their completion (Voorhees vs. United States Bank, 10
Pet,31435 U. S., 449) and if the record is silent with respect to
any fact which must have been established bef ore the court could
have rightly acted, it will be presumed that such fact was properly
broughttoitsknowledge."
The Court of First Instance is a court of original and general
jurisdictionandthereisnodifferenceinitsfacultiesinthisrespect
whether exercised in matters of probate or exerted in ordinary
contentious litigation. The trial court therefore necessarily had the

powertodeterminethefactsuponwhichtheproprietyofadmitting
the will to probate depended and the recital of those facts in the.
judgment was probably not essential to its validity. No express
rulingis,however,necessaryonthispoint.
What has been said effectually disposes of the petition
considered in its aspect as an attack upon the order of probate for
errorapparentonthefaceoftherecord.Butthepetitionerseeksto
havethejudgmentreviewed,itbeingassertedthatthefindingsofthe
trial courtespecially on the question of the citizenship of the
testatorarenotsupportedbytheevidence.Itneedsbutamoment's
reflection,however,toshowthatinsuchaproceedingasthis
170
itisnotpossibletoreversetheoriginalorderonthegroundthatthe
findings of the trial court are unsupported by the proof adduced
before that court. The only proceedingin which a review of the
evidencecanbesecuredisbyappeal,andthecaseisnotbeforeus
upon appeal from the original order admitting the will to probate.
Thepresentproceedingsbypetitiontosetasidetheorderofprobate,
and the appeal herein is from the order denying this relief. It is
obviousthatonappealfromanorderrefusingtovacateajudgment
it is not possible to review the evidence upon which the original
judgmentwasbased.Topermitthiswouldoperateundulytoprotract
therightofappeal.
However,forthepurposeofarrivingatajustconceptionofthe
casefromthepointofviewofthepetitioner,weproposetoexamine
theevidencesubmittedupontheoriginalhearing,inconnectionwith
the allegations of the petition, in order to see, first, whether the
evidence submitted to the trial court was sufficient to justify its
findings, and, secondly, whether the petition contains any matter
whichwouldjustifythecourtinsettingthejudgment,aside.Inthis
connectionweshall for a moment ignore the circumstance that the
petitionwasfiledaftertheexpirationofthesixmonthsallowedby
section113oftheCodeofCivilProcedure.
The principal controversy is over the citizenship of the testator.
The evidence adduced upon this point in the trial court consists of
the certificate of naturalization granted upon January 10, 1903, in
the Circuit Court of Cook County, Illinois, in connection with
certain biographical facts contained in the oral evidence. The
certificateofnaturalizationsuppliesincontrovertibleproofthatupon
thedatestatedthetestatorbecameacitizenoftheUnitedStates,and
inferentiallyalsoacitizenofsaidState.Inthetestimonysubmitted
to the trial court it appears that, when Johnson first came to the
UnitedStatesasaboy,hetookuphisabodeintheStateofIllinois
andthere
171
remaineduntilhecameasasoldierintheUnitedStatesArmytothe
Philippine Islands. Although he remained in these Islands for
sometime after receiving his discharge, no evidence was adduced
showing that at the time he returned to the United States, in the
autumnof1902,hehadthenabandonedIllinoisastheStateofhis
permanent domicile and on the contrary the certificate of
naturalization itself recites that at that time he claimed to be a
residentofIllinois.
Now,ifuponJanuary10,1903,thetestatorbecameacitizenof
the United States and of the State of Illinois, how has he lost the
character of citizen with respect to either of these jurisdictions?
There is no law in force by virtue of which any person of foreign
nativity can become a naturalized citizen of the Philippine Islands
and it was, therefore, impossible for the testator, even if he had so
desired,toexpatriatehimselffromtheUnitedStatesandchangehis
political status from a citizen of the United States to a citizen of
theseIslands.Thisbeingtrue,itistobepresumedthatheretained
his citizenship in the State of Illinois along with his status as a
citizenoftheUnitedStates.ItwouldbenoveldoctrinetoAmericans
living in the Philippine Islands to be told that by living here they
losetheircitizenshipintheStateoftheirnaturalizationornativity.
WearenotunmindfulofthefactthatwhenacitizenofoneState
leavesitandtakesuphisabodeinanotherStatewithnointentionof
returning, he immediately acquires citizenship in the State of his
new domicile. This is in accordance with that provision of the
Fourteenth Amendment to the Constitution of the United States
whichsaysthateverycitizenoftheUnitedStatesisacitizenofthe
Statewhereinheresides.Theeffect.ofthisprovisionnecessarilyis
that a person transferring his domicile from one State to another
loseshiscitizenshipintheStateofhisoriginalabodeuponacquiring
citizenshipintheState
172
of his new abode. The acquisition of the new State citizenship

extinguishestheold.Thatsituation,inouropinion,hasnoanalogy
to that which arises when a citizen of an American State comes to

reside in the Philippine Islands. Here he cannot acquire a new
citizenship nor by the mere change of domicile does he lose that
whichhebroughtwithhim.
Theproofadducedbeforethetrialcourtmustthereforebetaken
asshowingthat,atthetimethewillwasexecuted,thetestatorwas,
as stated in the order of probate, a citizen of the State of Illinois.
This,inconnectionwiththecircumstancethatthepetitiondoesnot
even so much as deny such citizenship but only asserts that the
testator was a resident of the Philippine Islands, demonstrates the
impossibility of' setting the probate aside for lack of the necessary
citizenship on the part of the testator. As already observed, the
allegationofthepetitiononthispointiswhollyinsufficienttojustify
anyreliefwhatever.
Upon the other pointas to whether the will was executed in
conformitywiththestatutesoftheStateofIIlinoiswenotethatit
doesnotaffirmativelyappearfromthetranscriptionofthetestimony
adduced in the trial court that any witness was examined with
reference to the law of Illinois on the subject of the execution of
will.Thetrialjudgenodoubtwassatisfiedthatthewillwasproperly
executed by examining section 1874 of the Revised Statutes of
Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated
IllinoisStatutes,2nded.,p.426andhemayhaveassumedthathe
couldtakejudicialnoticeofthelawsofIllinoisundersection275of
theCodeofCivilProcedure.Ifso,hewasinouropinionmistaken.
Thatsectionauthorizesthecourtsheretotakejudicialnotice,among
otherthings,oftheactsofthelegislativedepartmentoftheUnited
States.ThesewordsclearlyhavereferencetoActsoftheCongress
oftheUnitedStatesandwewouldhesitatetoholdthatourcourts
can,underthisprovision,takejudicialnoticeofthemul
173
we think that any such authority can be derived from the broader
language,usedinthesamesection,whereitissaidthatourcourts
maytakejudicialnoticeofmattersofpublicknowledge"similar"to
those therein enumerated. The proper rule we think is to require
proofofthestatutesoftheStatesoftheAmericanUnionwhenever
theirprovisionsaredeterminativeoftheissuesinanyactionlitigated
inthePhilippinecourts.
Nevertheless,evensupposingthatthetrialcourtmayhaveerred
in taking judicial notice of the law of Illinois on the point in
question, such error is not now available to the petitioner, first,
because the petition does not state any fact from which it would
appearthatthelawofIllinoisisdifferentfromwhatthecourtfound,
and,secondly,becausetheassignmentoferrorandargumentforthe
appellant in this court raises no question based on such supposed
error.Thoughthetrialcourtmayhaveacteduponpureconjectureas
to'thelawprevailingintheStateofIllinois,itsjudgmentcouldnot
be set aside, even upon application made within six months under
section113oftheCodeofCivilProcedure,unlessitshouldbemade
to appear affirmatively that the conjecture was wrong. The
petitioner,itistrue,statesingeneraltermsthatthewillinquestionis
invalidandinadequatetopassrealandpersonalpropertyintheState
ofIllinois,butthisismerelyaconclusionoflaw.Theaffidavitsby
which the petition is accompanied contain no reference to the
subject, and we are cited to no authority in the appellant's brief
which might tend to raise a doubt as to the correctness of the
conclusionofthetrialcourt.Itisveryclear,therefore,thatthispoint
cannotbeurgedasofseriousmoment.
But it is insisted in the brief for the appellant that the will in
questionwasnotproperlyadmissibletoprobatebecauseitcontains
provisions which cannot be given effect consistently with the laws
ofthePhilippineIslandsand173
174
itissuggestedthatasthepetitionerisalegitimateheirofthetestator
shecannotbedeprivedofthelegitimetowhichsheisentitledunder
the law governing testamentary successions in these Islands. Upon
thispointitissufficienttosaythattheprobateofthewilldoesnot
affect the intrinsic validity of its provisions, the decree of probate
being conclusive only as regards the due execution of the will.
(CodeofCivilProcedure,secs.625,614Sahagunvs.DeGorostiza,
7Phil.Rep.,347,349ChiongJocSoyvs.Vao,8Phil.Rep.,119,
121Limjucovs.Ganara,11Phil.Rep.,393,395.)
If,therefore,uponthedistributionofthisestate,itshouldappear
thatanylegacygivenbythewillorotherdispositionmadethereinis
contrarytothelawapplicableinsuchcase,thewillmustnecessarily
yield upon that point and the law must prevail. Nevertheless, it
shouldnotbeforgottenthattheintrinsicvalidityoftheprovisionsof
this will must be determined by the law of Illinois and not, as the
appellant apparently assumes, by the general provisions here
applicableinsuchmattersforinthesecondparagraphofarticle10
of the Civil Code it is declared that "legal and testamentary
successions,withregardtotheorderofsuccession,aswellastothe
amountofthesuccessionalrightsandtotheintrinsicvalidityoftheir
provisions,shallberegulatedbythelawsofthenationoftheperson
whosesuccessionisinquestion,whatevermaybethenatureofthe
propertyandthecountrywhereitmaybesituate."
From what has been said, it is, we think, manifest that the
petition submitted to the court below on October 31, 1916, was
entirely insufficient to warrant the setting aside of the order
probatingthewillinquestion,whethersaidpetitionbeconsideredas
anattackonthevalidityofthedecreeforerrorapparent,orwhether
itbeconsideredasanapplicationforarehearingbaseduponthenew
evidencesubmittedintheaffidavitswhichaccompanythepetition.
175
Ramosvs..DirectorofLands.
And in this latter aspect the petition is subject to the further fatal
defectthatitwasnotpresentedwithinthetimeallowedbylaw.
It follows that the trial court committed no error in denying the
reliefsought.Theorderappealedfromisaccordinglyaffirmedwith
costs.Soordered.
Torres,Johnson,Malcolm,Avancea,andFisher,JJ.,concur.
Orderaffirmed.
___________
Copyright2017CentralBookSupply,Inc.Allrightsreserved.

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3/18/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME039

In the matter of the ,estate of EMIL H. JOHNSON. EBBA

2. ID. ID. APPLICATION TO SET PROBATE ASIDE.Under

3. ID. AMERICAN CITIZEN RESIDING IN PHILIPPINE

4. STATUTES INTERPRETATION PUNCTUATION AND

of the Section, cannot have the effect of limiting the operative

6. WlLLS CONCLUSIVENESS OF PROBATE INTRINSIC

8. CITIZENSHIP AMERICANS RESIDENT IN PHILIPPINE

9. EVIDENCEJUDICIAL NOTICE.The courts of the Philippine

APPEAL from an order of the Court of First Instance of Manila.

On February 4, 1916, Emil H. Johnson, a native of Sweden and a

own state or country, may be proved, allowed, and recorded in the

The biographical facts relative to the deceased necessary to an

After Johnson was discharged as a soldier from the service of the

establishment of the claim of the petitioner as the sole legitimate

(1) Emil H. Johnson was a resident of the city of Manila and

manner prescribed by statute constituted due process of law. (See

vided, That application therefor be made within a reasonable time,

the subject matter of the proceeding who is in a position to be

contentious litigation. The trial court therefore necessarily had the

of his new abode. The acquisition of the new State citizenship

to that which arises when a citizen of an American State comes to

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