EN BANC
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The
partition of the estate left by the deceased Joseph G. Brimo is in question in
this case.
The judicial
administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it.
The errors
which the oppositor-appellant assigns are:
(1) The
approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order
approving the partition; (4) the approval of the purchase made by the Pietro
Lana of the deceased's business and the deed of transfer of said business; and
(5) the declaration that the Turkish laws are impertinent to this cause, and
the failure not to postpone the approval of the scheme of partition and the
delivery of the deceased's business to Pietro Lanza until the receipt of the
depositions requested in reference to the Turkish laws.
The
appellant's opposition is based on the fact that the partition in question puts
into effect the provisions of Joseph G. Brimo's will which are not in accordance
with the laws of his Turkish nationality, for which reason they are void as
being in violation or article 10 of the Civil Code which, among other things,
provides the following:
Nevertheless, legal and testamentary successions, in respect to the
order of succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law
of the person whose succession is in question, whatever may be the nature of
the property or the country in which it may be situated.
But the fact
is that the oppositor did not prove that said testimentary dispositions are not
in accordance with the Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the matter, and in the absence of
evidence on such laws, they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not
been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence
on this point; so much so that he assigns as an error of the court in not
having deferred the approval of the scheme of partition until the receipt of certain
testimony requested regarding the Turkish laws on the matter.
The refusal
to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample opportunity to introduce
competent evidence, we find no abuse of discretion on the part of the court in
this particular. There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated in the testamentary
dispositions in question which, not being contrary to our laws in force, must
be complied with and executed. lawphil.net
Therefore,
the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of
error which deals with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in will, it must be
taken into consideration that such exclusion is based on the last part of the
second clause of the will, which says:
Second. I
like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice,
nor by nationality and, on the other hand, having resided for a considerable
length of time in the Philippine Islands where I succeeded in acquiring all of
the property that I now possess, it is my wish that the distribution of my
property and everything in connection with this, my will, be made and disposed
of in accordance with the laws in force in the Philippine islands, requesting
all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons
who fail to comply with this request.
The
institution of legatees in this will is conditional, and the condition is that
the instituted legatees must respect the testator's will to distribute his
property, not in accordance with the laws of his nationality, but in accordance
with the laws of the Philippines.
If this
condition as it is expressed were legal and valid, any legatee who fails to
comply with it, as the herein oppositor who, by his attitude in these
proceedings has not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is,
however, that the said condition is void, being contrary to law, for article
792 of the civil Code provides the following:
Impossible
conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide.
And said
condition is contrary to law because it expressly ignores the testator's
national law when, according to article 10 of the civil Code above quoted, such
national law of the testator is the one to govern his testamentary
dispositions.
Said
condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and
consequently valid and effective even as to the herein oppositor.
It results
from all this that the second clause of the will regarding the law which shall
govern it, and to the condition imposed upon the legatees, is null and void,
being contrary to law.
All of the
remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary
to the testator's national law.
Therefore,
the orders appealed from are modified and it is directed that the distribution
of this estate be made in such a manner as to include the herein appellant
Andre Brimo as one of the legatees, and the scheme of partition submitted by
the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
So ordered.
Street, Malcolm, Avanceña, Villamor and Ostrand, JJ.,
concur.
