Estate of Johnson, 39 Phil.156

3/29/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 039
[No. 12767. November 16, 1918.]
In the matter of the ,estate of EMIL H.

JOHNSON. EBBA INGEBORG JOHNSON,
applicant and appellant.
1. WILLS; PROBATE; PUBLICATION OF

NOTICE.—Where a will 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, NOVEMBER 16, 1918. 157
In re Estate of Johnson.
of fraud, effective against all persons. The

fact that an heir or other interested party
lives so far away as to make it impossible for
such party to be present at the date
appointed for the probate of the will does not
render the order of probate void for lack of
due process.
2. ID.; ID.; APPLICATION TO SET PROBATE

ASIDE.—Under section 113 of the Code of
Civil Procedure a court has the authority
upon timely application of any interested
party to set aside the probate of a will and
grant a rehearing, where a proper case for
www.central.com.ph/sfsreader/session/000001787cbc392405ae0809003600fb002c009e/t/?o=False 1/27
the exercise of this power is made to appear

in the application.
3. ID.; AMERICAN CITIZEN RESIDING IN

PHILIPPINE ISLANDS.—The authority
expressed in section 636 of the Code of Civil
Procedure for the probate of the will of a
citizen of another state or country is
applicable to the case of a citizen of a State of
the American Union domiciled in the
Philippine Islands.
4. STATUTES; INTERPRETATION ;
PUNCTUATION AND CAPITALIZATION.—
It is a rule of hermeneutics that punctuation
and capitalization are aids of low degree in
interpreting the language of a statute and
can never control against the intelligible
meaning of the written words.
5. ID.; ID.; EPIGRAPH.—The epigraph, or

heading, of a section of a statute, being
nothing more than a convenient index to the
contents of the Section, cannot have the
effect of limiting the operative words
contained in the body of the text.
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. ; WILL OF AMERICAN

CITIZEN.—The intrinsic 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
acquire a new citizenship here; and he must
be assumed to retain his State citizenship
along with his status as a citizen of "the
United States.
9. EVIDENCE; JUDICIAL 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 judicial notice of the
laws enacted by Congress.
158
158 PHILIPPINE REPORTS ANNOTATED

APPEAL from an order of the Court of First

Instance of Manila. Harvey, J.
The facts are stated in the opinion of the court.
Hartigan & Welch for applicant and
appellant.
Hartford Beaumont for Victor Johnson and
others as appellees.
Chas. E. Tenney for Alejandra Ibañez de
Johnson, personally and as guardian, and for
Simeona Ibañez, 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,
leaving a will, dated September 9, 1915, by
which he disposed of an estate, the value of
which, as estimated by him, was P231,800.
This document is an holographic instrument,
being written in the testator's own
handwriting, and is signed by himself and two
witnesses only, instead of three witnesses
required by section 618 of the Code of Civil
Procedure. This will, therefore, was not
executed in conformity with the provisions of
law generally applicable to wills executed by
inhabitants of these Islands, and hence could
not have been proved under section 618.
On February 9, 1916, however, a petition
was presented in the Court of First Instance of
the city of Manila for the probate of this will,
on the ground that Johnson was at the time of
his death a citizen of the State of Illinois,
United States of America; that the will was
duly executed in accordance with the laws of
that State; and hence could properly be
probated here pursuant to section 636 of the
Code of Civil Procedure. This section reads as
follows:.
"Will made here by alien.—A will made
within the Philippine Islands by a citizen or
subject of another state or country, which is
executed in accordance with the law of the
state or country of which he is a citizen or
subject, and which might be proved and
allowed by the law of his
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VOL. 39, NOVEMBER 16,1918. 159

own state or country, may be proved, allowed,

and recorded in the Philippine Islands, and
shall have the same effect as if executed
according to the laws of these Islands."
The hearing on said application was set for
March 6, 1916, and three weeks publication of
notice was ordered in the "Manila Daily
Bulletin." Due publication was made pursuant
to this order of the court. On March 6, 1916,
witnesses were examined relative to the
execution of the will; and upon March 16th
thereafter the document was declared to be
legal and was admitted to probate. At the same
time an order was made nominating Victor
Johnson and John T. Pickett as administrators
of the estate, with the will annexed. Shortly
thereafter Pickett signified his desire not to
serve, and Victor Johnson was appointed sole
administrator.
By the will in question the testator gives to
his brother Victor one hundred shares of the
corporate stock in the Johnson-Pickett Rope
Company; to his father and mother in Sweden,
the sum of P20,000; to his daughter Ebba
Ingeborg, the sum of P5,000.; to his wife,
Alejandra Ibañez, the sum of P75 per month, if
she remains single; to Simeona Ibañez,
spinster, P65 per month, if she remains single.
The rest of the property is left to the testator's
five children—Mercedes, Encarnacion, Victor,
Eleonor and Alberto.
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 United States and lived in

Chicago, Illinois, from 1893 to 1898. On May 9,
1898, at Chicago, he was married to Rosalie
Ackeson, 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 Church
upon October 16, 1898.
160

After Johnson was discharged as a soldier from

the service of the United States he continued to
live in the Philippine Islands, and on November
20, 1902, the wife, Rosalie Johnson, was
granted a decree of divorce from him in the
Circuit Court of Cook County, Illinois, on the
ground of desertion. A little later Johnson
appeared in the United States on a visit and on
January 10, 1903, procured a certificate of
naturalization at Chicago. From Chicago he
appears to have gone to Sweden, where a
photograph, exhibited in evidence in this case,
was taken in which he appeared in a group
with his father, 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
continued to live until his death.
In this city he appears to have entered into

marital relations with Alejandra Ibañez, by
whom he had three children, to wit, Mercedes,
baptized May 31, 1903; Encarnacion, baptized
April 29, 1906; and Victor, baptized December
9, 1907. The other two children mentioned in
the will were borne to the deceased by Simeona
Ibañez.
On June 12, 1916, or about three months
after the will had been 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
attorneys moved the court to vacate the order
of March 16 and also various other orders in
the case. On February 20, 1917, this motion
was denied, and from this action of the trial
court the present appeal has been perfected.
As will be discerned, the purpose of the
proceeding on behalf of the petitioner is to
annul the decree of probate and put the estate
into intestate administration, thus preparing
the way for the establishment of the claim of
the petitioner as the sole legitimate heir of her
father.
The grounds upon which the petitioner seeks
to avoid the probate are four in number and
may be stated, in the
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VOL. 39, NOVEMBER 16, 1918. 161

same sequence in which they are set forth in

the petition, as follows:
Emil H. Johnson was a resident of the

(1) city of Manila and not a resident of the
State of Illinois at the time the will in
question was executed;
(2) The will is invalid and inadequate to
pass real and personal property in the
State of Illinois;
(3) The order admitting the will to probate
was made without notice to the
petitioner; and
(4) The order in question was beyond the
jurisdiction of the court.
It cannot of course be maintained that a court

of first instance lacks essential jurisdiction over
the probate of wills. The fourth proposition
above stated must, accordingly, be interpreted
in relation with the third and must be
considered as a corollary deduced from the
latter. Moreover, both the third and fourth
grounds stated take precedence, by reason of
their more fundamental implications, over the
first two; and a logical exposition of the
contentions of the petitioner is expressed in the
two following propositions:
" (I) The order admitting the will to probate

was beyond the jurisdiction of the court
and void because made without notice
to the petitioner;
"(II) The judgment from which the petitioner
seeks relief should be set aside because
the testator was not a resident of the
State of Illinois and the will was not in
conformity with the laws of that State."
In the discussion which is to follow we shall

consider the problems arising in this case in
the order last above indicated. Upon the

question, then, of the jurisdiction of the court,
it is apparent from an inspection of the record
of the proceedings in the court below that all
the steps prescribed by law as prerequisites to
the probate of a will were complied with in
every respect and that the probate was effected
in external conformity with all legal
162

requirements. This much is unquestioned. It is,

however, pointed out in the argument
submitted in behalf of the petitioner, that, at
the time the court made the order of
publication, it was apprised of the fact that the
petitioner lived in the United States and that
as daughter and heir she was necessarily
interested in the probate of the will. It is,
therefore, insisted that the court should have
appointed a date for the probate of the will
sufficiently far in the future to permit the
petitioner to be present either in person or by
representation; and it is said that the failure of
the court thus to postpone the probate of the
will constitutes an infringement of that
provision of the Philippine Bill which declares
that property shall not be taken without due
process of law.
On this point we are of the opinion that the
proceedings for the probate of the will were
regular and that the publication was sufficient
to give the court jurisdiction to entertain the
proceeding and to allow the will to be probated.
As was said in the case of In re Davis (139

Cal., 590, 596), "the proceeding as to the
probate of a will is essentially one in rem, 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. It would be an exceptional
case where a court would declare a statute
void, as depriving a party of his property
without due process of law, the proceeding
being strictly in rem, and the res within the
state, upon the ground that the constructive
notice prescribed by the statute was
unreasonably short."
In that case the petitioner had been
domiciled in the Hawaiian Islands at the time
of the testator's death; and it was impossible, in
view of the distance and means of
communication then existing, for the petitioner
to appear and oppose the probate on the day set
for the hearing in California. It was
nevertheless held that publication in the
163
VOL. 39, NOVEMBER 16, 1918. 163

manner prescribed by statute constituted due

process of law. (See Estate of Davis, 151 Cal.,
318; Tracy vs. Muir, 151 Cal., 363.)
In the Davis case (136 Cal, 590) the court
commented upon the fact that, under the laws
of California, the petitioner had a full year
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 same circumstance was
commented upon in O'Callaghan vs. O'Brien
(199 U. S., 89), decided in the Supreme Court of
the United States. This case arose under the
laws of the State of Washington, and it was
alleged that a will had been there probated
without the notice of application for probate
having-been given as required by law. It was
insisted that this was an infringement of the
Fourteenth Amendment of the Constitution of
the United States. This contention was,
however, rejected and it was held that the
statutory right to contest the will within a year
was a complete refutation of the argument
founded on the idea of a violation of the due
process provision.
The laws of these Islands, in contrast with
the laws in force in perhaps all of the States of
the American Union, contain no special
provision, other than that allowing an appeal
in the probate proceedings, under which relief
of any sort can be obtained f rom an order of a
court of first instance improperly allowing or
disallowing 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 found in section 113
of the Code of Civil Procedure, which reads as
follows:
"Upon such terms as may be just the court
may relieve a party or his legal representative
from a judgment, order, or other proceeding
taken against him through his mistake,
inadvertence, surprise or excusable neglect;
Pro-
164

vided, That application therefor be made

within a reasonable time, but in no case
exceeding six months after such judgment,
order, or proceeding was taken."
The use of the word "judgment, order or
other proceeding" in this section indicates an
intention on the part of the Legislature to give
a 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 defendant and brings him into court
by personal service of process. In other words
the utility of the provision is not limited to
actions proper but extends to all sorts of
judicial proceedings.
In the second section of the Code of Civil
Procedure it is declared that the provisions of
this Code shall be liberally construed to
promote its object and to assist the parties in
obtaining speedy justice. We think that the
intention thus exhibited should be applied in
the interpretation of section 113; and we hold
that the word "party," used in this section,
means any person having an interest in the
subject matter of the proceeding who is in a
position to be concluded by the judgment,
order, or other proceeding taken.
The petitioner, therefore, in this case could
have applied, under the section cited, at any
time within six months from March 16, 1916,
and upon showing that she had been precluded
from appearing in the probate proceedings by
conditions over which she had no control and
that the order admitting the will to probate had
been erroneously entered upon insufficient

proof or upon a supposed state of f acts
contrary to the truth, the court would have
been authorized to set the probate aside and
grant a rehearing. It is no doubt true that six
months was, under the circumstances, a very
short period of time within which to expect the
petitioner to appear and be prepared to contest
the probate with the proof which she might
have desired to collect from remote countries.
Neverthe-
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VOL. 39, NOVEMBER 16, 1918. 165

less, although the time allowed for the making

of such application was inconveniently short,
the remedy existed; and the possibility of 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
excepted to the order admitting the will to
probate.
It results that, in conformity with the
doctrine announced in the Davis case, above
cited, the proceedings in the court below were
conducted in such manner as to constitute due
process of law. The -law supplied a remedy by
which the petitioner might have gotten a
hearing and have obtained relief from the order
by which she is supposed to have been injured;
and though the period within which the
application should have been made was short,
the remedy was both possible and practicable.
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 unavoidably prevented from appearing at
the original hearing upon the matter of the
probate of the will in question. Whether the
result would have been the same if our system
of procedure had contained no such provision
as that expressed in section 113 is a matter
which we need not here consider.
Intimately connected with the question of
the jurisdiction of the court, is another matter
which may be properly discussed at this
juncture. This relates to the interpretation to
be placed upon section 636 of the Code of Civil
Procedure. The position is taken by the
appellant that this section is applicable only to
wills of aliens; and in this connection attention
is directed to the fact that the epigraph of this
section speaks only of the will made here by an
alien and to the further fact that the word
"state" in the body of the section is not
capitalized. From this it is argued that section
636 is not applicable to the will of a citizen of
the United States residing in these Islands.
166

We consider these suggestions of little weight

and are of the opinion that, by the most
reasonable interpretation of the language used
in the statute, the words "another state or
country" include the United States and the
States of the American Union, and that the
operation of the statute is not limited to wills of
aliens. It is a rule of hermeneutics that
punctuation and capitalization are aids of low

degree in interpreting the language of a statute
and can never control 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. It results that if Emil H.
Johnson was at the time of his death a citizen
of the United States and of the State of Illinois,
his will was provable under this section in the
courts of the Philippine Islands, provided the
instrument was so executed as to be admissible
to probate under the laws of the State of
Illinois.
We are thus brought to consider the second
principal proposition stated at the outset of this
discussion, which raises the question whether
the order of probate can be set aside in this
proceeding on the other ground stated in the
petition, namely, that the testator was not a
resident of the State of Illinois and that the will
was not made in conformity with the laws of
that State.
The order of the Court of First Instance
admitting the will to probate recites, among
other things:
"That upon the date when the will in
question was executed Emil H. Johnson was a
citizen of the United States, naturalized in the
State of Illinois, County of Cook, and that the
will in question was executed in conformity
with the dispositions of the law of the State of
.Illinois."
We consider this equivalent to a finding that
upon the date of the execution of the will the
testator was a citizen of the State of Illinois
and that the will was executed in conformity

with the laws of that State. Upon the last
167
VOL. 39, NOVEMBER 16, 1918. 167

point the finding is express; and in our opinion

the statement that the testator was a citizen of
the United States, naturalized in the State of
Illinois, should be taken to imply that he was a
citizen of the State of Illinois, as well as of the
United States.
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 Amendment to the
Constitution of the United States declares, in
its opening words, that all persons naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.
It is noteworthy that the petition by which it
is sought to annul the probate of this will does
not-assert that the testator was not a citizen of
Illinois at the date when the will was executed.
The most that is said on this point is he was
"never a resident of the State of Illinois after

the year 1898, but became and was a resident
of the city of Manila," etc. But residence in the
Philippine Islands is compatible 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.
As the Court of First Instance found that the
testator was a citizen of the State of Illinois
and that the will was executed in conformity
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
these findings?
168

In section 625 of the Code of Civil Procedure it

is declared that "the allowance by the court of a
will of real or personal property shall be
conclusive as to its due execution."
The due execution of a will involves
conditions relating to a number of matters,
such as the age and mental capacity of the
testator, the signing of the document by the
testator, or by someone in his behalf, and the
acknowledgment of the instrument by him in
the presence of the required number of
witnesses who affix their signatures to the will
to attest the act. The proof of all these
requisites is involved in the probate; and as to
each and all of them the probate is conclusive.
(Castañeda vs. Alemany, 3 Phil. Rep., 426;
Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong

Joc-Soy vs. Vaño, 8 Phil. Rep., 119; Sanchez vs.
Pascual, 11 Phil. Rep., 395; Montañano vs.
Suesa, 14 Phil. Rep., 676.)
Our reported cases do not contain the
slightest intimation that a will which has been
probated according to law, and without fraud,
can be annulled, in any other proceeding
whatever, on account of any supposed
irregularity or defect in the execution of the
will or on 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, in case the probate of a will should be
procured by fraud, 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, this would introduce an
entirely different factor in the case. In Austria
vs. Ventenilla (21 Phil. Rep., 180, 184), it was
suggested but not decided that relief might be
granted in case the probate of a will were
procured by fraud.
The circumstance that the judgment of the
trial court recites that the will was executed in
conformity with the law of Illinois and also, in
effect, that the testator was a citizen of that
State places the judgment upon an unas-
169
VOL. 39, NOVEMBER 16, 1918. 169

sailable basis so far as any supposed error

apparent upon the face of the judgment is
concerned. It is, however, probable that even if
the judgment had not contained these recitals,
there would have been a presumption from the

admission of the will to probate as the will of a
citizen of Illinois that the facts were as recited
in the order of probate.
As was said by this court in the case of
Banco Español-Filipino vs. Palanca (37 Phil.
Rep., 921), "There is no principle of law better
settled than that after jurisdiction has once
been acquired, every act 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, 314; 35 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 brought to its
knowledge."
The Court of First Instance is a court of
original and general jurisdiction; and there is
no difference in its faculties in this respect
whether exercised in matters of probate or
exerted in ordinary contentious litigation. The
trial court therefore necessarily had the power
to determine the facts upon which the propriety
of admitting the will to probate depended; and
the recital of those facts in the. judgment was
probably not essential to its validity. No
express ruling is, however, necessary on this
point.
What has been said effectually disposes of
the petition considered in its aspect as an
attack upon the order of probate for error
apparent on the face of the record. But the
petitioner seeks to have the judgment
reviewed, it being asserted that the findings of
the trial court—especially on the question of
the citizenship of the testator—are not

supported by the evidence. It needs but a
moment's reflection, however, to show that in
such a proceeding as this
170

it is not possible to reverse the original order

on the ground that the findings of the trial
court are unsupported by the proof adduced
before that court. The only proceeding-in which
a review of the evidence can be secured is by
appeal, and the case is not before us upon
appeal from the original order admitting the
will to probate. The present proceedings by
petition to set aside the order of probate, and
the appeal herein is from the order denying
this relief. It is obvious that on appeal from an
order refusing to vacate a judgment it is not
possible to review the evidence upon which the
original judgment was based. To permit this
would operate unduly to protract the right of
appeal.
However, for the purpose of arriving at a
just conception of the case from the point of
view of the petitioner, we propose to examine
the evidence submitted upon the original
hearing, in connection with 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
which would justify the court in setting the
judgment, aside. In this connection we shall for
a moment ignore the circumstance that the
petition was filed after the expiration of the six

months allowed by section 113 of the Code of
Civil Procedure.
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 certificate of naturalization
supplies incontrovertible proof that upon the
date stated the testator became a citizen of the
United States, and inferentially also a citizen
of said State. In the testimony submitted to the
trial court it appears that, when Johnson first
came to the United States as a boy, he took up
his abode in the State of Illinois and there
171
VOL. 39, NOVEMBER 16, 1918. 171

remained until he came as a soldier in the

United States Army to the 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
autumn of 1902, he had then abandoned
Illinois as the State of his permanent domicile;
and on the contrary the certificate of
naturalization itself recites that at that time he
claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator
became a citizen of 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, to
expatriate himself f rom the United States and
change his political status from a citizen of the
United States to a citizen of these Islands. This
being true, it is to be presumed that he
retained his citizenship in the State of Illinois
along with his status as a citizen of the United
States. It would be novel doctrine to Americans
living in the Philippine Islands to be told that
by living here they lose their citizenship in the
State of their naturalization or nativity.
We are not unmindful of the fact that when
a citizen of one State leaves it and takes up his
abode in another State with no intention of
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 which says that every citizen
of the United States is a citizen of the State
wherein he resides. The effect .of this provision
necessarily is that a person transferring his
domicile from one State to another loses his
citizenship in the State of his original abode
upon acquiring citizenship in the State
172

of his new abode. The acquisition of the new

State citizenship extinguishes the old. That
situation, in our opinion, has no analogy 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 which he brought with him.
The proof adduced before the trial court
must therefore be taken as showing that, at the
time the will was executed, the testator was, as
stated in the order of probate, a citizen of the
State of Illinois. This, in connection with the
circumstance that the petition does not 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
allegation of the petition on this point is wholly
insufficient to justify any relief whatever.
Upon the other point—as to whether the will
was executed in conformity with the statutes of
the State of IIlinois—we note that it does not
affirmatively appear from the transcription of
the testimony 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. The trial judge no doubt was
satisfied that the will was properly executed by
examining section 1874 of the Revised Statutes
of Illinois, as exhibited in volume 3 of Starr &
Curtis's Annotated Illinois Statutes, 2nd ed., p.
426; and he may have assumed that he could
take judicial notice of the laws of Illinois under
section 275 of the Code of Civil Procedure. If so,
he was in our opinion mistaken. That section
authorizes the courts here to take judicial
notice, among other things, of the acts of the
legislative department of the United States.
These words clearly have reference to Acts of

the Congress of the United States; and we
would hesitate to hold that our courts can,
under this provision, take judicial notice of the
mul-
173
VOL. 39, NOVEMBER 16, 1918. 173

we think that any such authority can be

derived from the broader language, used in the
same section, where it is said that our courts
may take judicial notice of matters of public
knowledge "similar" to those therein
enumerated. The proper rule we think is to
require proof of the statutes of the States of the
American Union whenever their provisions are
determinative of the issues in any action
litigated in the Philippine courts.
Nevertheless, even supposing that the trial
court may have erred 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 appear that
the law of Illinois is different from what the
court found, and, secondly, because the
assignment of error and argument for the
appellant in this court raises no question based
on such supposed error. Though the trial court
may have acted upon pure conjecture as to' the
law prevailing in the State of Illinois, its
judgment could not be set aside, even upon
application made within six months under
section 113 of the Code of Civil Procedure,
unless it should be made to appear
affirmatively that the conjecture was wrong.

The petitioner, it is true, states in general
terms that the will in question is invalid and
inadequate to pass real and personal property
in the State of Illinois, but this is merely a
conclusion of law. The affidavits by 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 conclusion
of the trial court. It is very clear, therefore, that
this point cannot be urged as of serious
moment.
But it is insisted in the brief for the
appellant that the will in question was not
properly admissible to probate because it
contains provisions which cannot be given
effect consistently with the laws of the
Philippine Islands; and 173
174

it is suggested that as the petitioner is a

legitimate heir of the testator she cannot be
deprived of the legitime to which she is entitled
under the law governing testamentary
successions in these Islands. Upon this point it
is sufficient to say that the probate of the will
does not affect the intrinsic validity of its
provisions, the decree of probate being
conclusive only as regards the due execution of
the will. (Code of Civil Procedure, secs. 625,
614; Sahagun vs. De Gorostiza, 7 Phil. Rep.,
347, 349; Chiong Joc-Soy vs. Vaño, 8 Phil. Rep.,
119, 121; Limjuco vs. Ganara, 11 Phil. Rep.,

393, 395.)
If, therefore, upon the distribution of this
estate, it should appear that any legacy given
by the will or other disposition made therein is
contrary to the law applicable in such case, the
will must necessarily yield upon that point and
the law must prevail. Nevertheless, it should
not be forgotten that the intrinsic validity of
the provisions of this will must be determined
by the law of Illinois and not, as the appellant
apparently assumes, by the general provisions
here applicable in such matters; for in the
second paragraph of article 10 of the Civil Code
it is declared - that "legal and testamentary
successions, with regard to the order of
succession, as well as to the amount of the
successional rights and to the intrinsic validity
of their provisions, shall be regulated by the
laws of the nation of the person whose
succession is in question, whatever may be the
nature of the property and the country where it
may be situate."
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 probating the will in question, whether
said petition be considered as an attack on the
validity of the decree for error apparent, or
whether it be considered as an application for a
rehearing based upon the new evidence
submitted in the affidavits which accompany
the petition.
175
VOL. 39, NOVEMBER 19, 1918. 175
Ramos vs.. Director of Lands.
And in this latter aspect the petition is subject

to the further fatal defect that it was not
presented within the time allowed by law.
It follows that the trial court committed no
error in denying the relief sought. The order
appealed from is accordingly affirmed with
costs. So ordered.
Torres, Johnson, Malcolm, Avanceña, and

Fisher, JJ., concur.
Order affirmed.
___________
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Estate of Johnson, 39 Phil.156

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3/29/2021 SUPREME COURT REPORTS ANNOTATED VOLUME 039

[No. 12767. November 16, 1918.]

In the matter of the ,estate of EMIL H.

1. WILLS; PROBATE; PUBLICATION OF

VOL. 39, NOVEMBER 16, 1918. 157

of fraud, effective against all persons. The

2. ID.; ID.; APPLICATION TO SET PROBATE

the exercise of this power is made to appear

3. ID.; AMERICAN CITIZEN RESIDING IN

5. ID.; ID.; EPIGRAPH.—The epigraph, or

6. WlLLS; CONCLUSIVENESS OF PROBATE;

7. ID. ; ID. ; ID. ; WILL OF AMERICAN

provisions of the will of a citizen of one of the

8. CITIZENSHIP ; AMERICANS RESIDENT

9. EVIDENCE; JUDICIAL NOTICE.—The

158 PHILIPPINE REPORTS ANNOTATED

APPEAL from an order of the Court of First

On February 4, 1916, Emil H. Johnson, a

VOL. 39, NOVEMBER 16,1918. 159

own state or country, may be proved, allowed,

emigrated to the United States and lived in

160 PHILIPPINE REPORTS ANNOTATED

After Johnson was discharged as a soldier from

In this city he appears to have entered into

VOL. 39, NOVEMBER 16, 1918. 161

same sequence in which they are set forth in

Emil H. Johnson was a resident of the

It cannot of course be maintained that a court

" (I) The order admitting the will to probate

In the discussion which is to follow we shall

the order last above indicated. Upon the

162 PHILIPPINE REPORTS ANNOTATED

requirements. This much is unquestioned. It is,

As was said in the case of In re Davis (139

VOL. 39, NOVEMBER 16, 1918. 163

manner prescribed by statute constituted due

publication in the manner provided by statute

164 PHILIPPINE REPORTS ANNOTATED

vided, That application therefor be made

been erroneously entered upon insufficient

VOL. 39, NOVEMBER 16, 1918. 165

less, although the time allowed for the making

Emil H. Johnson to probate cannot be declared

166 PHILIPPINE REPORTS ANNOTATED

We consider these suggestions of little weight

punctuation and capitalization are aids of low

and that the will was executed in conformity

VOL. 39, NOVEMBER 16, 1918. 167

point the finding is express; and in our opinion

"never a resident of the State of Illinois after

168 PHILIPPINE REPORTS ANNOTATED

In section 625 of the Code of Civil Procedure it

Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong

VOL. 39, NOVEMBER 16, 1918. 169

sailable basis so far as any supposed error

there would have been a presumption from the

the citizenship of the testator—are not

170 PHILIPPINE REPORTS ANNOTATED

it is not possible to reverse the original order

petition was filed after the expiration of the six

VOL. 39, NOVEMBER 16, 1918. 171

remained until he came as a soldier in the

of citizen with respect to either of these