G.R. No.

L-35694

December 23, 1933

ALLISON G. GIBBS, petitioner-appelle,

vs.
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, oppositor-appellant.
THE REGISTER OF DEEDS OF THE CITY OF MANILA, respondent-appellant.
Office of the Solicitor-General Hilado for appellants.
Allison D. Gibbs in his own behalf.

BUTTE, J.:
This is an appeal from a final order of the Court of First Instance of Manila, requiring the register of
deeds of the City of Manila to cancel certificates of title Nos. 20880, 28336 and 28331, covering
lands located in the City of Manila, Philippine Islands, and issue in lieu thereof new certificates of
transfer of title in favor of Allison D. Gibbs without requiring him to present any document showing
that the succession tax due under Article XI of Chapter 40 of the Administrative Code has been paid.
The said order of the court of March 10, 1931, recites that the parcels of land covered by said
certificates of title formerly belonged to the conjugal partnership of Allison D. Gibbs and Eva Johnson
Gibbs; that the latter died intestate in Palo Alto, California, on November 28, 1929; that at the time of
her death she and her husband were citizens of the State of California and domiciled therein.
It appears further from said order that Allison D. Gibbs was appointed administrator of the state of
his said deceased wife in case No. 36795 in the same court, entitled "In the Matter of the Intestate
Estate of Eva Johnson Gibbs, Deceased"; that in said intestate proceedings, the said Allison D.
Gibbs, on September 22,1930, filed an ex parte petition in which he alleged "that the parcels of land
hereunder described belong to the conjugal partnership of your petitioner and his wife, Eva Johnson
Gibbs", describing in detail the three facts here involved; and further alleging that his said wife, a
citizen and resident of California, died on November 28,1929; that in accordance with the law of
California, the community property of spouses who are citizens of California, upon the death of the
wife previous to that of the husband, belongs absolutely to the surviving husband without
administration; that the conjugal partnership of Allison D. Gibbs and Eva Johnson Gibbs, deceased,
has no obligations or debts and no one will be prejudiced by adjucating said parcels of land (and
seventeen others not here involved) to be the absolute property of the said Allison D. Gibbs as sole
owner. The court granted said petition and on September 22, 1930, entered a decree adjucating the
said Allison D. Gibbs to be the sole and absolute owner of said lands, applying section 1401 of the
Civil Code of California. Gibbs presented this decree to the register of deeds of Manila and
demanded that the latter issue to him a "transfer certificate of title".
Section 1547 of Article XI of Chapter 40 of the Administrative Code provides in part that:
Registers of deeds shall not register in the registry of property any document transferring
real property or real rights therein or any chattel mortgage, by way of gifts mortis causa,
legacy or inheritance, unless the payment of the tax fixed in this article and actually due
thereon shall be shown. And they shall immediately notify the Collector of Internal Revenue
or the corresponding provincial treasurer of the non payment of the tax discovered by them. .
..

Acting upon the authority of said section, the register of deeds of the City of Manila, declined to
accept as binding said decree of court of September 22,1930, and refused to register the transfer of
title of the said conjugal property to Allison D. Gibbs, on the ground that the corresponding
inheritance tax had not been paid. Thereupon, under date of December 26, 1930, Allison D. Gibbs
filed in the said court a petition for an order requiring the said register of deeds "to issue the
corresponding titles" to the petitioner without requiring previous payment of any inheritance tax. After
due hearing of the parties, the court reaffirmed said order of September 22, 1930, and entered the
order of March 10, 1931, which is under review on this appeal.
On January 3, 1933, this court remanded the case to the court of origin for new trial upon additional
evidence in regard to the pertinent law of California in force at the time of the death of Mrs. Gibbs,
also authorizing the introduction of evidence with reference to the dates of the acquisition of the
property involved in this suit and with reference to the California law in force at the time of such
acquisition. The case is now before us with the supplementary evidence.
For the purposes of this case, we shall consider the following facts as established by the evidence or
the admissions of the parties: Allison D. Gibbs has been continuously, since the year 1902, a citizen
of the State of California and domiciled therein; that he and Eva Johnson Gibbs were married at
Columbus, Ohio, in July 1906; that there was no antenuptial marriage contract between the parties;
that during the existence of said marriage the spouses acquired the following lands, among others,
in the Philippine Islands, as conjugal property:
lawphil.net

1. A parcel of land in the City of Manila represented by transfer certificate of title No. 20880, dated
March 16, 1920, and registered in the name of "Allison D. Gibbs casado con Eva Johnson Gibbs".
2. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28336, dated
May 14, 1927, in which it is certified "that spouses Allison D. Gibbs and Eva Johnson Gibbs are the
owners in fee simple" of the land therein described.
3. A parcel of land in the City of Manila, represented by transfer certificate of title No. 28331, dated
April 6, 1927, which it states "that Allison D. Gibbs married to Eva Johnson Gibbs" is the owner of
the land described therein; that said Eva Johnson Gibbs died intestate on November 28, 1929, living
surviving her her husband, the appellee, and two sons, Allison J. Gibbs , now age 25 and Finley J.
Gibbs, now aged 22, as her sole heirs of law.
Article XI of Chapter 40 of the Administrative Code entitled "Tax on inheritances, legacies and other
acquisitionsmortis causa" provides in section 1536 that "Every transmission by virtue of
inheritance ... of real property ... shall be subject to the following tax." It results that the question for
determination in this case is as follows: Was Eva Johnson Gibbs at the time of her death the owner
of a descendible interest in the Philippine lands above-mentioned?
The appellee contends that the law of California should determine the nature and extent of the title, if
any, that vested in Eva Johnson Gibbs under the three certificates of title Nos. 20880, 28336 and
28331 above referred to, citing article 9 of the Civil Code. But that, even if the nature and extent of
her title under said certificates be governed by the law of the Philippine Islands, the laws of
California govern the succession to such title, citing the second paragraph of article 10 of the Civil
Code.
Article 9 of the Civil Code is as follows:
The laws relating to family rights and duties, or to the status, condition, and legal capacity of
persons, are binding upon Spaniards even though they reside in a foreign country." It is

argued that the conjugal right of the California wife in community real estate in the Philippine
Islands is a personal right and must, therefore, be settled by the law governing her personal
status, that is, the law of California. But our attention has not been called to any law of
California that incapacitates a married woman from acquiring or holding land in a foreign
jurisdiction in accordance with the lex rei sitae. There is not the slightest doubt that a
California married woman can acquire title to land in a common law jurisdiction like the State
of Illinois or the District of Columbia, subject to the common-law estate by the courtesy which
would vest in her husband. Nor is there any doubt that if a California husband acquired land
in such a jurisdiction his wife would be vested with the common law right of dower, the
prerequisite conditions obtaining. Article 9 of the Civil Code treats of purely personal
relations and status and capacity for juristic acts, the rules relating to property, both personal
and real, being governed by article 10 of the Civil Code. Furthermore, article 9, by its very
terms, is applicable only to "Spaniards" (now, by construction, to citizens of the Philippine
Islands).
The Organic Act of the Philippine Islands (Act of Congress, August 29, 1916, known as the
"Jones Law") as regards the determination of private rights, grants practical autonomy to the
Government of the Philippine Islands. This Government, therefore, may apply the principles
and rules of private international law (conflicts of laws) on the same footing as an organized
territory or state of the United States. We should, therefore, resort to the law of California, the
nationality and domicile of Mrs. Gibbs, to ascertain the norm which would be applied here as
law were there any question as to her status.
But the appellant's chief argument and the sole basis of the lower court's decision rests upon the
second paragraph of article 10 of the Civil Code which is as follows:
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.
In construing the above language we are met at the outset with some difficulty by the expression
"the national law of the person whose succession is in question", by reason of the rather anomalous
political status of the Philippine Islands. (Cf. Manresa, vol. 1, Codigo Civil, pp. 103, 104.) We
encountered no difficulty in applying article 10 in the case of a citizen of Turkey. (Miciano vs. Brimo,
50 Phil., 867.) Having regard to the practical autonomy of the Philippine Islands, as above stated, we
have concluded that if article 10 is applicable and the estate in question is that of a deceased
American citizen, the succession shall be regulated in accordance with the norms of the State of his
domicile in the United States. (Cf. Babcock Templeton vs. Rider Babcock, 52 Phil., 130, 137; In
re Estate of Johnson, 39 Phil., 156, 166.)
The trial court found that under the law of California, upon the death of the wife, the entire
community property without administration belongs to the surviving husband; that he is the absolute
owner of all the community property from the moment of the death of his wife, not by virtue of
succession or by virtue of her death, but by virtue of the fact that when the death of the wife
precedes that of the husband he acquires the community property, not as an heir or as the
beneficiary of his deceased wife, but because she never had more than an inchoate interest or
expentancy which is extinguished upon her death. Quoting the case of Estate of Klumpke (167 Cal.,
415, 419), the court said: "The decisions under this section (1401 Civil Code of California) are
uniform to the effect that the husband does not take the community property upon the death of the
wife by succession, but that he holds it all from the moment of her death as though required by
himself. ... It never belonged to the estate of the deceased wife."

The argument of the appellee apparently leads to this dilemma: If he takes nothing by succession
from his deceased wife, how can the second paragraph of article 10 be invoked? Can the appellee
be heard to say that there is a legal succession under the law of the Philippine Islands and no legal
succession under the law of California? It seems clear that the second paragraph of article 10
applies only when a legal or testamentary succession has taken place in the Philippines and in
accordance with the law of the Philippine Islands; and the foreign law is consulted only in regard to
the order of succession or the extent of the successional rights; in other words, the second
paragraph of article 10 can be invoked only when the deceased was vested with a descendible
interest in property within the jurisdiction of the Philippine Islands.
In the case of Clarke vs. Clarke (178 U. S., 186, 191; 44 Law ed., 1028, 1031), the court said:
It is principle firmly established that to the law of the state in which the land is situated we
must look for the rules which govern its descent, alienation, and transfer, and for the effect
and construction of wills and other conveyances. (United States vs. Crosby, 7 Cranch, 115; 3
L. ed., 287; Clark vs. Graham, 6 Wheat., 577; 5 L. ed., 334; McGoon vs. Scales, 9 Wall., 23;
19 L. ed., 545; Brine vs. Hartford F. Ins. Co., 96 U. S., 627; 24 L. ed., 858.)" (See also Estate
of Lloyd, 175 Cal., 704, 705.) This fundamental principle is stated in the first paragraph of
article 10 of our Civil Code as follows: "Personal property is subject to the laws of the nation
of the owner thereof; real property to the laws of the country in which it is situated.
It is stated in 5 Cal. Jur., 478:
In accord with the rule that real property is subject to the lex rei sitae, the respective rights of
husband and wife in such property, in the absence of an antenuptial contract, are determined
by the law of the place where the property is situated, irrespective of the domicile of the
parties or to the place where the marriage was celebrated. (See also Saul vs. His Creditors,
5 Martin [N. S.], 569; 16 Am. Dec., 212 [La.]; Heidenheimer vs. Loring, 26 S. W., 99 [Texas].)
Under this broad principle, the nature and extent of the title which vested in Mrs. Gibbs at the time of
the acquisition of the community lands here in question must be determined in accordance with
the lex rei sitae.
It is admitted that the Philippine lands here in question were acquired as community property of the
conjugal partnership of the appellee and his wife. Under the law of the Philippine Islands, she was
vested of a title equal to that of her husband. Article 1407 of the Civil Code provides:
All the property of the spouses shall be deemed partnership property in the absence of proof
that it belongs exclusively to the husband or to the wife. Article 1395 provides:
"The conjugal partnership shall be governed by the rules of law applicable to the contract of
partnership in all matters in which such rules do not conflict with the express provisions of this
chapter." Article 1414 provides that "the husband may dispose by will of his half only of the property
of the conjugal partnership." Article 1426 provides that upon dissolution of the conjugal partnership
and after inventory and liquidation, "the net remainder of the partnership property shall be divided
share and share alike between the husband and wife, or their respective heirs." Under the provisions
of the Civil Code and the jurisprudence prevailing here, the wife, upon the acquisition of any conjugal
property, becomes immediately vested with an interest and title therein equal to that of her husband,
subject to the power of management and disposition which the law vests in the husband.
Immediately upon her death, if there are no obligations of the decedent, as is true in the present
case, her share in the conjugal property is transmitted to her heirs by succession. (Articles 657, 659,
661, Civil Code; cf. alsoCoronel vs. Ona, 33 Phil., 456, 469.)

It results that the wife of the appellee was, by the law of the Philippine Islands, vested of a
descendible interest, equal to that of her husband, in the Philippine lands covered by certificates of
title Nos. 20880, 28336 and 28331, from the date of their acquisition to the date of her death. That
appellee himself believed that his wife was vested of such a title and interest in manifest from the
second of said certificates, No. 28336, dated May 14, 1927, introduced by him in evidence, in which
it is certified that "the spouses Allison D. Gibbs and Eva Johnson Gibbs are the owners in fee simple
of the conjugal lands therein described."
The descendible interest of Eva Johnson Gibbs in the lands aforesaid was transmitted to her heirs
by virtue of inheritance and this transmission plainly falls within the language of section 1536 of
Article XI of Chapter 40 of the Administrative Code which levies a tax on inheritances. (Cf. Re Estate
of Majot, 199 N. Y., 29; 92 N. E., 402; 29 L. R. A. [N. S.], 780.) It is unnecessary in this proceeding to
determine the "order of succession" or the "extent of the successional rights" (article 10, Civil
Code, supra) which would be regulated by section 1386 of the Civil Code of California which was in
effect at the time of the death of Mrs. Gibbs.
The record does not show what the proper amount of the inheritance tax in this case would be nor
that the appellee (petitioner below) in any way challenged the power of the Government to levy an
inheritance tax or the validity of the statute under which the register of deeds refused to issue a
certificate of transfer reciting that the appellee is the exclusive owner of the Philippine lands included
in the three certificates of title here involved.
The judgment of the court below of March 10, 1931, is reversed with directions to dismiss the
petition, without special pronouncement as to the costs.

Grant v. McAuliffe , 41 Cal.2d 859

[Sac. No. 6416. In Bank. Dec. 23, 1953.]
WILLIAM R. GRANT, Appellant, v. FRANK H. McAULIFFE, as Administrator, etc.,
Respondent.
[Sac. No. 6417. In Bank. Dec. 23, 1953]
RUSSELL M. MANCHESTER, Appellant, v. FRANK H. McAULIFFE, as Administrator,
etc., Respondent.
[Sac. No. 6418. In Bank. Dec. 23, 1953.]
DOYLE O. JENSEN, Appellant, v. FRANK H. McAULIFFE, as Administrator, etc.,
Respondent.
COUNSEL
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein and Goldstein, Barceloux &
Goldstein for Appellants.
Honey & Mayall and John J. Hurley for Respondent.
OPINION
TRAYNOR, J.
On December 17, 1949, plaintiffs W. R. Grant and R. M. Manchester were riding west
on United States Highway 66 in an automobile owned and driven by plaintiff D. O.
Jensen. Defendant's decedent, W. W. Pullen, was driving his automobile east on the
same highway. The two automobiles collided at a point approximately 15 miles east
of Flagstaff, Arizona. Jensen's automobile was badly damaged, and Jensen, Grant,
and Manchester suffered personal injuries. Nineteen days later, on January 5, 1950,
Pullen died as a result of injuries received in the collision. Defendant McAuliffe was
appointed administrator of his estate and letters testamentary were issued by the
Superior Court of Plumas County. All three plaintiffs, as well as Pullen, were
residents of California at the time of the collision. After the appointment of
defendant, each plaintiff presented his claim for damages. Defendant rejected all
three claims, and on December 14, 1950, each plaintiff filed an action against the
estate of Pullen to recover damages for the injuries caused by the alleged
negligence of the decedent. Defendant filed a general demurrer and a motion to
abate each of the complaints. The trial court entered an order granting the motion
in each case. Each plaintiff has appealed. The appeals are [41 Cal.2d 862] based on
the same ground and have therefore been consolidated.
The basic question is whether plaintiffs' causes of action against Pullen survived his
death and are maintainable against his estate. The statutes of this state provide
that causes of action for negligent torts survive the death of the tort feasor and can
be maintained against the administrator or executor of his estate. (Civ. Code, 956;
Code Civ. Proc., 385; Prob. Code, 573, 574.) Defendant contends, however, that
the survival of a cause of action is a matter of substantive law, and that the courts
of this state must apply the law of Arizona governing survival of causes of action.
There is no provision for survival of causes of action in the statutes of Arizona,
although there is a provision that in the event of the death of a party to a pending
proceeding his personal representative can be substituted as a party to the action
(Arizona Code, 1939, 21-534), if the cause of action survives. (Arizona Code, 1939,
21-530.) The Supreme Court of Arizona has held that if a tort action has not been
commenced before the death of the tort feasor a plea in abatement must be

sustained. (McClure v. Johnson, 50 Ariz. 76, 82 [69 P.2d 573]. See, also, McLellan v.
Automobile Ins. Co. of Hartford, Conn., 80 F.2d 344.)
[1] Thus, the answer to the question whether the causes of action against Pullen
survived and are maintainable against his estate depends on whether Arizona or
California law applies. In actions on torts occurring abroad, the courts of this state
determine the substantive matters inherent in the cause of action by adopting as
their own the law of the place where the tortious acts occurred, unless it is contrary
to the public policy of this state. (Loranger v. Nadeau, 215 Cal. 362 [10 P.2d 63, 84
A.L.R. 1264].) [2] "[N]o court can enforce any law but that of its own sovereign, and,
when a suitor comes to a jurisdiction foreign to the place of the tort, he can only
invoke an obligation recognized by that sovereign. A foreign sovereign under
civilized law imposes an obligation of its own as nearly homologous as possible to
that arising in the place where the tort occurs." (Learned Hand, J., in Guinness v.
Miller, 291 F. 769, 770.) [3] But the forum does not adopt as its own the procedural
law of the place where the tortious acts occur. It must, therefore, be determined
whether survival of causes of action is procedural or substantive for conflict of laws
purposes. [41 Cal.2d 863]
This question is one of first impression in this state. The precedents in other
jurisdictions are conflicting. In many cases it has been held that the survival of a
cause of action is a matter of substance and that the law of the place where the
tortious acts occurred must be applied to determine the question. (Burg v. Knox,
334 Mo. 329, 335-338 [67 S.W.2d 96]; Chubbuck v. Holloway, 182 Minn. 225, 227230 [234 N.W. 314, 868], followed in Kerston v. Johnson, 185 Minn. 591, 593 [242
N.W. 329]; Davis v. New York & N.E. R. Co., 143 Mass. 301, 305-306 [9 N.E. 815];
Hyde v. Wabash, St. L. & Pac. Ry. Co., 61 Iowa 441, 444 [16 N.W. 351, 47 Am.St.Rep.
820] [but see Gordon v. Chicago, R. I. & P. Ry. Co., 154 Iowa 449, 451 [134 N.W.
1057, Ann.Cas. 1915B 113]]; Mexican Cent. Ry. Co. v. Goodman, 20 Tex.Civ.App.
109, 110 [48 S.W. 778] [but see Texas & Pac. Ry. Co. v. Richards, 68 Tex. 375, 378 [4
S.W. 627]]; Needham v. Grand Trunk Ry. Co., 38 Vt. 294, 307-311; Ormsby v.
Chase, 290 U.S. 387, 388 [54 S.Ct. 211, 78 L.Ed. 378], followed in McIntosh v.
General Chem. Defense Corp., 67 F.Supp. 63, 64, Woollen v. Lorenz, 98 F.2d 261,
262 [68 App.D.C. 389], Gray v. Blight, 112 F.2d 696, 697-698, and Muir v. Kessinger,
45 F.Supp. 116, 117; Orr v. Ahern, 107 Conn. 174, 178-180 [139 A. 691]; Potter v.
First Nat. Bank, 107 N.J.Eq. 72, 74-75 [151 A. 546], followed in Friedman v.
Greenberg, 110 N.J.L. 462, 464-466 [166 A. 119], and Rathgeber v. Sommerhalder,
112 N.J.L. 546, 548-549 [171 A. 835]; Summer v. Brown, 312 Pa. 124, 127 [167 A.
315].) The Restatement of the Conflict of Laws, section 390, is in accord. It should
be noted, however, that the majority of the foregoing cases were decided after
drafts of the Restatement were first circulated in 1929. Before that time, it appears
that the weight of authority was that survival of causes of action is procedural and
governed by the domestic law of the forum. (Austin v. Pittsburg, C., C., & St. L. Ry.
Co., 122 Ky. 304, 309-310 [91 S.W. 742]; Baltimore & Ohio R. Co. v. Joy, 173 U.S.
226, 231 [19 S.Ct. 387, 43 L.Ed. 677]; Clough v. Gardiner, 111 Misc. 244, 248-249
[182 N.Y.S. 803]; Herzog v. Stern, 264 N.Y. 379, 383-384 [191 N.E. 23], followed in
Demuth v. Griffin, 253 App.Div. 399, 401 [2 N.Y.S.2d 2], Domres v. Storms, 236
App.Div. 630 [260 N.Y.S. 335], Silverman v. Rappaport, 165 Misc. 543, 545-546 [300
N.Y.S. 76], Taynton v. Vollmer, 242 App.Div. 854 [275 N.Y.S. 284]; Gordon v. Chicago,
R. I. & P. Ry. Co., 154 Iowa 449, 451 [134 N.W. 1057]; In re Vilas' Estate, 166 Ore.

115, 123-124 [110 P.2d 940]; Martin v. Baltimore & Ohio R. Co., 151 U.S. 673, [41
Cal.2d 864] 692-693 [14 S.Ct. 533, 38 L.Ed. 311]; Martin v. Wabash R. Co., 142 F.
650, 651 [73 C.C.A. 646, 6 Ann.Cas. 582]; Page v. United Fruit Co., 3 F.2d 747, 754;
Matter of Killough, 148 Misc. 73, 85-89 [265 N.Y.S. 301]; Texas & Pac. Ry. Co. v.
Richards, 68 Tex. 375, 378 [4 S.W. 627]. See, also, Barker v. Ladd, Fed.Cas. 990 [3
Sawy. 44]; Gaskins v. Bonfils, 4 F.Supp. 547, 551; Luster v. Martin, 58 F.2d 537, 539540; Portland Gold Mining Co. v. Stratton's Independence, Ltd., 196 F. 714, 716-717;
Whitten v. Bennett, 77 F. 271, 273; Winslow v. Domestic Engineering Co., 20 F.Supp.
578, 579.) Many of the cases, decided both before and after the Restatement,
holding that survival is substantive and must be determined by the law of the place
where the tortious acts occurred, confused the problems involved in survival of
causes of action with those involved in causes of action for wrongful death. (See, for
example, the precedents on which the courts relied in Hyde v. Wabash, St. L. & Pac.
Ry. Co., supra, 61 Iowa 441; Orr v. Ahern, supra, 107 Conn. 174; and Ormsby v.
Chase, supra, 290 U.S. 387.) The problems are not analogous. (See Schumacher,
"Rights of Action Under Death and Survival Statutes," 23 Mich.L.Rev. 114, 116-117,
124-125.) [4] A cause of action for wrongful death is statutory. It is a new cause of
action vested in the widow or next of kin, and arises on the death of the injured
person. Before his death, the injured person himself has a separate and distinct
cause of action and, if it survives, the same cause of action can be enforced by the
personal representative of the deceased against the tort feasor. [5] The survival
statutes do not create a new cause of action, as do the wrongful death statutes.
(Needham v. Grand Trunk Ry. Co., supra, 38 Vt. 294, 303-306; Austin v. Pittsburg, C.,
C., & St. L. Ry. Co., supra, 122 Ky. 304, 308-310; Martin v. Baltimore & Ohio R. Co.,
supra,151 U.S. 673, 696, 698, 701; Patton v. Brady, 184 U.S. 608, 612-615 [22 S.Ct.
493, 46 L.Ed. 713]; Spring v. Webb, 227 F. 481, 484-485; 1 C.J.S., p. 211;
Schumacher, supra, 23 Mich.L.Rev. 114, 124- 125. The English courts have reached
the same result in construing similar statutes: Davies v. Powell Dufferin Assoc.
Collieries, Ltd., [1942] A.C. 601, 610-616; Rose v. Ford, [1937] A.C. 826, 852, 855856. See, also, Bradshaw v. Lancashire and Yorkshire Ry. Co., [1875] 10 C.P. 189,
192-193.) They merely prevent the abatement of the cause of action of the injured
person, and provide for its enforcement by or against the personal representative of
the deceased. [6] They are analogous to statutes of limitation, which [41 Cal.2d
865] are procedural for conflict of laws purposes and are governed by the domestic
law of the forum. (Biewend v. Biewend, 17 Cal.2d 108, 114 [109 P.2d 701, 132 A.L.R.
1264].) [7] Thus, a cause of action arising in another state, by the laws of which an
action cannot be maintained thereon because of lapse of time, can be enforced in
California by a citizen of this state, if he has held the cause of action from the time
it accrued. (Code Civ. Proc., 361; Stewart v. Spaulding, 72 Cal. 264, 266 [13 P.
661]. See, also, Biewend v. Biewend, supra,; and Western Coal & Mining Co. v.
Jones, 27 Cal.2d 819, 828 [167 P. 719, 164 A.L.R. 685].)
Defendant contends, however, that the characterization of survival of causes of
action as substantive or procedural is foreclosed by Cort v. Steen, 36 Cal.2d 437,
442 [224 P.2d 723], where it was held that the California survival statutes were
substantive and therefore did not apply retroactively. The problem in the present
proceeding, however, is not whether the survival statutes apply retroactively, but
whether they are substantive or procedural for purposes of conflict of laws. [8] "
'Substance' and 'procedure' ... are not legal concepts of invariable content" (Black
Diamond Steamship Corp. v. Stewart & Sons, 336 U.S. 386, 397 [69 S.Ct. 622, 93

L.Ed. 754]. See, also, Guaranty Trust Co. v. York, 326 U.S. 99, 109 [65 S.Ct. 1464, 89
L.Ed. 2079, 160 A.L.R. 1231]; Sampson v. Channell, 110 F.2d 754, 756, 758; Estate
of Caravas, 40 Cal.2d 33, 41-42 [250 P.2d 593]; W. W. Cook, The Logical and Legal
Bases of the Conflict of Laws (1942), c. 6: "Substance and Procedure"), and a
statute or other rule of law will be characterized as substantive or procedural
according to the nature of the problem for which a characterization must be made.
[9] Defendant also contends that a distinction must be drawn between survival of
causes of action and revival of actions, and that the former are substantive but the
latter procedural. On the basis of this distinction, defendant concludes that many of
the cases cited above as holding that survival is procedural and is governed by the
domestic law of the forum do not support this position, since they involved
problems of "revival" rather than "survival." The distinction urged by defendant is
not a valid one. Most of the statutes involved in the cases cited provided for the
"revival" of a pending proceeding by or against the personal representative of a
party thereto should he die while the action is still [41 Cal.2d 866] pending. But in
most "revival" statutes, substitution of a personal representative in place of a
deceased party is expressly conditioned on the survival of the cause of action
itself. fn. 1 [10] If the cause of action dies with the tort feasor, a pending proceeding
must be abated. A personal representative cannot be substituted in the place of a
deceased party unless the cause of action is still subsisting. In cases where this
substitution has occurred, the courts have looked to the domestic law of the forum
to determine whether the cause of action survives as well as to determine whether
the personal representative can be substituted as a party to the action. (Gordon v.
Chicago, R. I. & P. Ry. Co., supra, 154 Iowa 449, 451; Martin v. Baltimore & Ohio R.
Co., supra, 151 U.S. 673, 692; Martin v. Wabash R. Co., supra, 142 F. 650, 651;
Baltimore & Ohio R. Co. v. Joy, supra, 173 U.S. 226, 231.) Defendant's contention
would require the courts to look to their local statutes to determine "revival" and to
the law of the place where the tort occurred to determine "survival," but we have
found no case in which this procedure was followed.
Since we find no compelling weight of authority for either alternative, we are free to
make a choice on the merits. [11] We have concluded that survival of causes of
action should be governed by the law of the forum. [12] Survival is not an essential
part of the cause of action itself but relates to the procedures available for the
enforcement of the legal claim for damages. Basically the question is one of the
administration of decedents' estates, which is a purely local proceeding. The
problem here is whether the causes of action that these plaintiffs had against Pullen
before his death survive as liabilities of his estate. Section 573 of the Probate Code
provides that "all actions founded ... upon any liability for physical injury, death or
injury to property, may be maintained by or against executors and administrators in
all cases in which the cause of action ... is one which would not abate upon the
death of their respective testators or intestates. ..." Civil Code, section 956, provides
that [41 Cal.2d 867] "A thing in action arising out of a wrong which results in
physical injury to the person ... shall not abate by reason of the death of the
wrongdoer ...," and causes of action for damage to property are maintainable
against executors and administrators under section 574 of the Probate Code. (See
Hunt v. Authier, 28 Cal.2d 288, 292-296 [169 P.2d 913, 171 A.L.R. 1379]; Cort v.
Steen, supra, 36 Cal.2d 437, 439-440.) Decedent's estate is located in this state,
and letters of administration were issued to defendant by the courts of this state.

[13] The responsibilities of defendant, as administrator of Pullen's estate, for injuries

inflicted by Pullen before his death are governed by the laws of this state. This
approach has been followed in a number of well-reasoned cases. (Matter of Killough,
supra, 148 Misc. 73, 85-89; Herzog v. Stern, supra, 264 N.Y. 379; In re Vilas' Estate,
supra, 166 Ore. 115; Martin v. Baltimore & Ohio R. Co., supra, 151 U.S. 673; Whitten
v. Bennett, supra, 77 F. 271, 273.) It retains control of the administration of estates
by the local Legislature and avoids the problems involved in determining the
administrator's amenability to suit under the laws of other states. [14] The common
law doctrine actio personalis moritur cum persona had its origin in a penal concept
of tort liability. (See Prosser, Law of Torts 950-951; Pollock, The Law of Torts (10th
ed.) 64, 68.) Today, tort liabilities of the sort involved in these actions are regarded
as compensatory. [15] When, as in the present case, all of the parties were
residents of this state, and the estate of the deceased tort feasor is being
administered in this state, plaintiff's right to prosecute their causes of action is
governed by the laws of this state relating to administration of estates.
The orders granting defendant's motions to abate are reversed, and the causes
remanded for further proceedings.

7 Wis.2d 130 (1959)

2
HAUMSCHILD, Appellant,
v.
CONTINENTAL CASUALTY COMPANY and others, Respondents.
3
Supreme Court of Wisconsin.
4
March 2, 1959.
5
April 10, 1959.
6
[131] For the appellant there was a brief and oral argument by Thomas P.
Maroney of Milwaukee.
7
For the respondents there was a brief by Shaw, Muskat & Paulsen, attorneys,
and Jack R. Wiedabach of counsel, all of Milwaukee, and oral argument by Mr.
Wiedabach.
8
CURRIE, J.
9
This appeal presents a conflict-of-laws problem with respect to interspousal liability
for tort growing out of an automobile accident. Which law controls, that of the state
of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is
both the state of the forum and of the domicile while California is the state where
the alleged wrong was committed. Under Wisconsin law a wife may sue her
husband in tort. Under California law she cannot. Peters v. Peters (1909), 156 Cal.
32, 103 Pac. 219; Cubbison v. Cubbison (1946), 73 Cal. App. (2d) 437, 166 Pac. (2d)
387; and Paulus v. Bauder (1951), 106 Cal. App. (2d) 589, 235 Pac. (2d) 422.
10
This court was first faced with this question in Buckeye v. Buckeye (1931), 203 Wis.
248, 234 N. W. 342. In that case Wisconsin was the state of the forum and domicile,
while Illinois was the state of the place of wrong. It was there held that the law
governing the creation and extent of tort liability is that of the place where the tort
was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188, sec. 92. From this
premise it was further held that interspousal immunity from tort liability necessarily
is governed [132] by the law of the place of injury. This principle of conflict of laws
has been consistently applied in all subsequent interspousal actions in automobile
accident cases[1] except the recent case of Bodenhagen v. Farmers Mut. Ins.
Co. (1958), 5 Wis. (2d) 306, 92 N. W. (2d) 759, 95 N. W. (2d) 822, hereinafter
discussed.
11
The principle enunciated in the Buckeye Case and followed in subsequent Wisconsin
cases, that the law of the place of wrong controls as to whether one spouse is
immune from suit in tort by the other, is the prevailing view in the majority of
jurisdictions in this country. Anno. 22 A. L. R. (2d) 1248, 1251-1253, entitled,
"Conflict of laws as to right of action between husband and wife or parent and
child." It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378,
and p. 470, sec. 384 (2). However, criticism of the rule of theBuckeye Case, by legal
writers, some of them recognized authorities in the field of conflict of laws, and

recent decisions by the courts of California, New Jersey, and Pennsylvania, have
caused us to re-examine the question afresh.
12
In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School
faculty published his book entitled, "The Logical and Legal Bases of the Conflict of
Laws." It was his conclusion that the law of the domicile, and not the place of wrong,
should be applied in determining whether [133] a wife had capacity to sue her
husband in tort. Pages 248 to 250 and 345 to 346 of text. Also, in 1942, Max
Rheinstein in an article in 41 Michigan Law Review, 83, 97, advocated that the law
of domicile should be applied in conflict-of-laws situations to determine whether
there is an immunity for tort grounded on family relationship. Ernst Rabel, in his
"The Conflict of Laws: A Comparative Study" (1945), pp. 322, 323, pointed out that
in the civil-law countries of western Europe prohibitions, which exclude lawsuits in
tort between husband and wife, are considered part of family law and, therefore, the
law of the domicile governs and not the law of the place of wrong.
13
The most-comprehensive treatment of the problem that we have discovered is the
excellent 30-page article in 15 University of Pittsburgh Law Review, 397, entitled,
"Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and
Reason versus the Restatement," by Alan W. Ford, published in 1954. The article
contains a careful analysis of the American cases on the subject commencing with
our own Buckeye Case. The author's conclusion is stated as follows (p. 423):
14
"The lex fori and the lex loci delicti rules have already been criticized as inadequate.
Between them, these two rules encompass all of the American cases. To find a
more-desirable alternative we must, therefore, go beyond those cases. The foreign
experience, briefly discussed above, is a useful starting point. As that experience
suggests, there is some logic in separating questions of status and tort, in
determining the incidents of the marital relationship by the family law, and the
problems of tort by the law of torts. If a conflicts problem is involved, there is no
reason why both questions should be determined by the law of torts. Instead, the
two questions should remain separate, and problems of status or capacity could be
referred, by an appropriate conflicts rule, to the law of the place of the domicile."
15
[134] Ford, in his article, cited four cases of interspousal immunity in which
American courts have refused to apply the law of the place of wrong to an
automobile accident situation but instead applied their own law of the forum: Poling
v. Poling (1935), 116 W. Va. 187, 179 S. E. 604; Mertz v. Mertz (1936), 271 N. Y. 466,
3 N. E. (2d) 597, 108 A. L. R. 1120; Kircher v. Kircher (1939), 288 Mich. 669, 286 N.
W. 120; and Kyle v. Kyle(1941), 210 Minn. 204, 297 N. W. 744. In all four cases one
spouse sued the other in the state of domicile where there existed the immunity
from suit in tort in a situation where the accident had occurred in a state which had
abolished the immunity. The decisions were based on the ground that the public
policy of the forum state forbade one spouse suing the other in tort. [2] The holdings
in these four cases are highly significant because they are inconsistent in result with
the theory that the injured spouse possessed a vested right in the cause of action
which had accrued in the state where the alleged negligence occurred. Furthermore,
these cases are authority for the principle that public policy may be a controlling
factor to be considered by the court of the forum state in determining which law it

will apply in resolving a conflict-of-laws problem. This factor of public policy is also
acknowledged in Restatement, Conflict of Laws, pp. 9, 10, sec. 5, comment b.
16
The first case to break the ice and flatly hold that the law of domicile should be
applied in determining whether there existed an immunity from suit for tort based
upon family relationship is Emery v. Emery (1955), 45 Cal. (2d) [135] 421, 289 Pac.
(2d) 218. In that case two unemancipated minor sisters sued their unemancipated
minor brother and their father to recover for injuries sustained in an automobile
accident that occurred in the state of Idaho, the complaint alleging wilful
misconduct in order to come within the provisions of the Idaho "guest" statute. All
parties were domiciled in California. The opinion by Mr. Justice TRAYNOR recognized
that the California court, in passing on the question of whether an unemancipated
minor child may sue the parent or an unemancipated brother, had a choice to apply
the law of the place of wrong, of the forum, or of the domicile. It was held that the
immunity issue was not a question of tort but one of capacity to sue and be sued,
and rejected the law of the place of injury as "both fortuitous and irrelevant." In
deciding whether to apply the law of the forum, or the law of the domicile, the
opinion stated this conclusion (45 Cal. (2d) 428, 289 Pac. (2d) 222):
17
"Although tort actions between members of the same family will ordinarily be
brought in the state of the family domicile, the courts of another state will in some
cases be a more convenient forum, and thus the question arises whether the
choice-of-law rule should be expressed in terms of the law of the forum or that of
the domicile. We think that disabilities to sue and immunities from suit because of a
family relationship are more properly determined by reference to the law of the
state of the family domicile. That state has the primary responsibility for
establishing and regulating the incidents of the family relationship and it is the only
state in which the parties can, by participation in the legislative processes, effect a
change in those incidents. Moreover, it is undesirable that the rights, duties,
disabilities, and immunities conferred or imposed by the family relationship should
constantly change as members of the family cross state boundaries during
temporary absences from their home."
18
Since the decision in Emery v. Emery, supra, two other courts have held that, when
a court is confronted with a [136] conflict-of-laws problem in order to resolve an
issue of whether there is an immunity from suit for tort based upon a family
relationship, the law to be applied is that of the domicile state. Koplik v. C. P.
Trucking Corp. (1958), 27 N. J. 1, 141 Atl. (2d) 34; and Pittman v. Deiter (1957), 10
Pa. D. & C. (2d) 360. The conclusion reached by the New Jersey supreme court in
the Koplik Case, after first having rejected the law of the place of injury as
applicable to the immunity question, is stated succinctly as follows (27 N. J. 11, 141
Atl. (2d) 40):
19
"As a final word on the subject, we hold the view that even where an actual conflictof-laws problem is directly presented, it is sensible and logical to have disabilities to
sue and immunities from suit arising from the family relationship determined by
reference to the law of the state of the family domicile when the suit is brought in
that state. Otherwise, the lex loci will be permitted to interfere seriously with a
status and a policy which the state of residence is primarily interested in

maintaining." (Citing Emery v. Emery, supra, and Ford's article in 15 University of

Pittsburgh Law Review.)
20
Among recent law-review articles and notes approving the holding of one or more of
the afore-cited three cases, which have held that immunity from suit based on
family relationship is a matter of family law rather than tort law and should be
governed by the law of the domicile, are: 31 Temple Law Quarterly, 117, 4 Wayne
Law Review, 79, and 33 Indiana Law Journal, 297. All were published in 1958.
21
The two reasons most often advanced for the common-law rule, that one spouse
may not sue the other, are the ancient concept that husband and wife constitute in
law but one person, and that to permit such suits will be to foment family discord
and strife. The Married Women's Acts of the various states have effectively
destroyed the "one person" [137] concept thereby leaving as the other remaining
reason for the immunity the objective of preventing family discord. This is also the
justification usually advanced for denying an unemancipated child the capacity to
sue a parent, brother, or sister. [3] Clearly this policy reason for denying the capacity
to sue more properly lies within the sphere of family law, where domicile usually
controls the law to be applied, than it does tort law, where the place of injury
generally determines the substantive law which will govern. In making a choice
between the law of the domicile and the law of the forum, in those situations where
the action is not brought in the state of the domicile, the afore-quoted persuasive
arguments advanced by the California and New Jersey courts in Emery v. Emery,
supra, and Koplik v. C. P. Trucking Corp., supra, in favor of applying the law of
domicile to decide any issue of incapacity to sue based upon family relationship,
seem unanswerable.
22
We are convinced that, from both the standpoint of public policy and logic, the
proper solution of the conflict-of-laws problem, in cases similar to the instant action,
is to hold that the law of the domicile is the one that ought to be applied in
determining any issue of incapacity to sue based upon family relationship.
23
However, in order to adopt such a conflict-of-laws rule it will be necessary to
overrule at least six prior decisions of this court, and to partially overrule two
others. If it ever is proper for a court to depart from stare decisis, we scarcely can
perceive of a more-justifiable situation in which to do so. In the first place, the rule
being discarded is one lying [138] in the field of conflict of laws as applied to torts
so that there can hardly have been any action taken by the parties in reliance upon
it. Secondly, strong reasons of public policy exist for supplanting such rule by a
better one which does not unnecessarily discriminate against the citizens of our
own state.
24
The most-compelling argument against taking such step is that it departs from the
rule of the Restatement, and disturbs the sought-after ideal of establishing some
uniformity in the conflict-of-laws field. However, as well appears from the cases
hereinbefore cited, there is a clearly discernible trend away from the rule of the
Restatement in so far as it requires that the law of the place of wrong is to be
applied in determining questions of incapacity to sue based on family status.
Furthermore, it must be recognized that, in the field of the conflict of laws, absolutes
should not be made the goal at the sacrifice of progress in furtherance of sound

public policy. The American Law Institute is now engaged in redrafting a revised
Restatement of Conflict of Laws. In such work of revision the question of whether
the law of the domicile, rather than the law of the place of wrong, should be applied,
in resolving an issue of interfamily immunity from suit in tort, will undoubtedly
receive consideration.
25
After most careful deliberation, it is our considered judgment that this court should
adopt the rule that, whenever the courts of this state are confronted with a conflictof-laws problem as to which law governs the capacity of one spouse to sue the other
in tort, the law to be applied is that of the state of domicile. We, therefore, expressly
overrule the cases of Buckeye v. Buckeye, supra; Forbes v. Forbes (1938), 226 Wis.
477, 277 N. W. 112;Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N. W.
426; Garlin v. Garlin (1951), 260 Wis. 187, 50 N. W. (2d) 373; [139] Scholle v. Home
Mut. Casualty Co. (1956), 273 Wis. 387, 78 N. W. (2d) 902; andHansen v.
Hansen (1956), 274 Wis. 262, 80 N. W. (2d) 230. We do not overrule the result in the
cases ofNelson v. American Employers' Ins. Co. (1951), 258 Wis. 252, 45 N. W. (2d)
681, and 22 A. L. R. (2d) 1244, and Jaeger v. Jaeger (1952), 262 Wis. 14, 53 N. W.
(2d) 740, but we disapprove of the holding therein that the law of place of injury
controlled the issue of interspousal immunity.
26
It is interesting to note that, if the rule now adopted had been applied in the first six
cited overruled automobile accident cases, the result in four of such cases would
have been to hold that there was no interspousal immunity from suit, because the
parties were domiciled in Wisconsin. Only in Forbes v. Forbes, supra, and Bourestom
v. Bourestom, supra, would immunity from suit have been found to exist if the law
of the domicile, as interpreted by this court, had been applied to such issue.
27
The Forbes Case is the only one of the eight where the place of wrong was
Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons
hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state
most concerned with the policy considerations of whether the plaintiff wife had
capacity to sue her husband. Furthermore, the plaintiff in the Forbes Case would not
have fared worse in Wisconsin than she would have in the state of domicile.
28
The Bourestom Case involved "forum shopping" which ought to be discouraged
rather than tolerated. There Oklahoma was the state of injury, Minnesota the state
of domicile, and Wisconsin the state of forum. The adoption of the new rule would
not in theory close the doors of our courts to a nonresident spouse in such a
situation instituting suit in Wisconsin. However, the defendant spouse might have
[140] a good defense in bar if he pleaded, and proved, the true state of domicile,
and took the proper steps to bring before the trial court the law of such state
granting the immunity.
29
Perhaps a word of caution should be sounded to the effect that the instant decision
should not be interpreted as a rejection by this court of the general rule that
ordinarily the substantive rights of parties to an action in tort are to be determined
in the light of the law of the place of wrong. This decision merely holds that
incapacity to sue because of marital status presents a question of family law rather
than tort law.
30

Earlier in this opinion we made a brief reference to our recent decision

in Bodenhagen v. Farmers Mut. Ins. Co.In that case a wife domiciled in Wisconsin
instituted suit against the insurer of her husband's automobile to recover for injuries
sustained in an automobile accident occurring in Illinois as a result of the alleged
negligence of the husband. We first looked to Illinois law to determine whether a
cause of action existed in favor of the plaintiff wife. The Illinois law was interpreted
by us as holding that its interspousal immunity against suit in tort barred only the
remedy and not the cause of action, and, therefore, Wisconsin, as the forum state,
would not apply such law. A motion for rehearing was filed subsequent to our
original decision and the brief filed in support thereof caused this court to grant a
rehearing. The reason for so doing was that we entertained grave doubt as to
whether we had reached the right conclusion in holding that under Illinois law the
interspousal immunity to suit in tort was procedural and not substantive. Because of
the result reached in the instant appeal we now find it unnecessary to pass on such
last-mentioned point. In an opinion this day handed down in such rehearing in
the Bodenhagen Case we have affirmed the original result, but have grounded the
same upon the principle [141] herein adopted, i.e., that the law of domicile controls
the issue of interspousal immunity.
31
The concurring opinion by Mr. Justice FAIRCHILD protests that we should not adopt
the conflict-of-laws rule, that interspousal immunity to suit in tort should be
determined by the law of the domicile, because this was not urged in the briefs or
arguments of counsel. However, appellant's brief did cite and summarize Emery v.
Emery, supra, and on the oral argument appellant's counsel also cited Koplik v. C. P.
Trucking Corp., supra, in which two cases such rule was adopted by the California
and New Jersey courts. While the appellant's counsel did not request that we
overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin cases dealing
with this particular conflict-of-laws problem, he did specifically seek to have this
court apply California's conflict-of-laws principle, that the law of the domicile is
determinative of interspousal capacity to sue, to this particular case. However, to do
so would violate the well-recognized principle of conflict of laws that, where the
substantive law of another state is applied, there necessarily must be excluded such
foreign state's law of conflict of laws. Restatement, Conflict of Laws, p. 11, sec. 7
(b); 11 Am. Jur., Conflict of Laws, p. 296, sec. 3; 15 C. J. S., Conflict of Laws, p. 872,
sec. 7; Griswold, Renvoi Revisited, 51 Harvard Law Review, 1165, 1170, 1173; [4]and
note in 18 George Washington Law Review, 559.
32
The reason why the authorities on conflict of laws almost universally reject the
renvoi doctrine (permitting a court [142] of the forum state to apply the conflict-oflaws principle of a foreign state) is that it is likely to result in the court pursuing a
course equivalent to a never-ending circle. For example, in the instant case, if
the Buckeye v. Buckeye line of Wisconsin cases is to be followed, the Wisconsin
court first looks to the law of California to see whether a wife can sue her husband
in tort. California substantive law holds that she cannot. However, California has
adopted a conflict-of-laws principle that holds that the law of the domicile
determines such question. Applying such principle the court is referred back to
Wisconsin law because Wisconsin is the state of domicile. Again the court applies
Wisconsin law and, under the prior holdings of the Buckeye v. Buckeye line of
authorities, would have to again refer to California law because such line of cases

does not recognize that the law of domicile has anything to do with interspousal
immunity, but holds that the law of the state of injury controls.
33
Wisconsin certainly should not adopt the much-criticized renvoi principle in order
not to overrule the Buckeye v. Buckeye line of cases, and still permit the plaintiff to
recover. Such a result we believe would contribute far more to produce chaos in the
field of conflict of laws than to overrule the Buckeye v. Buckeye line of cases and
adopt a principle the soundness of which has been commended by so many
reputable authorities.
34
By the Court.Judgment reversed, and cause remanded for further proceedings not
inconsistent with this opinion.

G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria
Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final account and project
of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the
residue of the estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar
as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that should govern the
estate of the deceased Christensen should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires
that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a testator
has the right to dispose of his property in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death. But there is also no question that at the time of his death he
was domiciled in the Philippines, as witness the following facts admitted by the executor himself in
appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country,
and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts.
1wph1.t

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6",
CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded
by the fact that he was born in New York, migrated to California and resided there for nine years, and
since he came to the Philippines in 1913 he returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never to have owned or acquired a home or
properties in that state, which would indicate that he would ultimately abandon the Philippines and
make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in accordance with the
following principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning.
Thus one may be domiciled in a place where he has never been. And he may reside in a
place where he has no domicile. The man with two homes, between which he divides his
time, certainly resides in each one, while living in it. But if he went on business which would
require his presence for several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is clear, however, that, if he
treated his settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in force
only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it can refer to no other than
the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property?
The decision of the court below, sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will in the form and manner he

desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case
cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in
force in the State of California of which Christensen was a citizen. Appellant, on the other hand,
insists that Article 946 should be applicable, and in accordance therewith and following the doctrine
of therenvoi, the question of the validity of the testamentary provision in question should be referred
back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers
a jural matter to a foreign law for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to Michigan Conflict of Laws.
This would have resulted in the "endless chain of references" which has so often been
criticized be legal writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law rather than to
the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but
those who have accepted the renvoitheory avoid this inextricabilis circulas by getting off at
the second reference and at that point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to internal law as the rule of
reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the
two states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to
which would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a

person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property
in Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict
of laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the
national law of the deceased, thus applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it has
been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoiis that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of
laws, and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of therenvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.

xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one
of them is necessarily competent, which agree in attributing the determination of a
question to the same system of law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile,
he must first inquire whether the law of Belgium would distribute personal property upon
death in accordance with the law of domicile, and if he finds that the Belgian law would make
the distribution in accordance with the law of nationality that is the English law he must
accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied
in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such
of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the determination of matters with foreign element involved is in
accord with the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed
two sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-oflaws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code
of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This contention can not be sustained. As
explained in the various authorities cited above the national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile
can not and should not refer the case back to California; such action would leave the issue incapable
of determination because the case will then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code
of the Philippines, makes natural children legally acknowledged forced heirs of the parent
recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen
of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with
Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower
court with instructions that the partition be made as the Philippine law on succession provides.
Judgment reversed, with costs against appellees.

277 Mich. 658

270 N.W. 175
2
UNIVERSITY OF CHICAGO
v.
DATER et al.
3
No. 89.
4
Supreme Court of Michigan.
5
Dec. 8, 1936.
6
Suit by the University of Chicago against George R. Dater and Clara A. Price. From
an an adverse judgment the plaintiff appells.
7
Affirmed.
8
SHARPE, BUTZEL, and BUSHNELL, JJ., dissenting.
9
Appeal from Circuit Court, Berrien County; Charles E. White, judge.
10
Argued before the Entire Bench, except POTTER, J.
11
Webster Sterling, of Benton Harbor (W. M. Cunningham, of Benton Harbor, and L.
Dow Nichol, Jr., of Chicago, Ill, of counsel), for appellant.
12
Gore, Harvey & Fisher, of Benton Harbor, for appellee.
13
WIEST, Justice.
14
I cannot concur in the opinion of Mr. Justice SHARPE.
15
The obligation in suit was executed in this state by defendant Clara A. Price, a
married woman, and bore no relation to her separate estate, and, without more,
carried no personal liability when sued upon in this jurisdiction. But, it is claimed,
that the obligation was accepted in the state of Illinois, and was there payable and,
by the law of that state, Mrs. Price is not saved from liability by reason of want of
capacity under the Michigan law of coverture.
16
As pointed out later in this opinion, personal liability of Mrs. Price could not be
enforced in Illinois under the theory of an Illinois contract.
17
In the case at bar negotiations for the loan, to be secured by mortgage, had
reached the stage where the lender prepared the note and mortgage in Illinois and
sent the same to an agent in Michigan, with direction as to execution by defendants
in this state, and, when executed, to be returned by such agent to the mortgagee in
Illinois. Mrs. Price, at the request of the agent, executed the instruments and the
agent mailed the same to the mortgagee.
18

The instant case does not involve conflict of laws relative to the construction, force,
and effect of the instruments, signed or executed in one state to be performed in
another, but that of capacity of Mrs. Price to enter into such an obligation in this
state.
19
It is well said in a note, 26 L.R.A.(N.S.) 773: While there are almost numberless
cases which state, with slight variations, Story's general proposition that, where the
contract is either expressly or tacitly to be performed in some place other than that
where it is made, the general rule is, in conformity to the presumed intention of the
parties, that the contract, as to its validity, nature, obligation, and interpretation, is
to be governed by the law of the place of performance, none of them can be
regarded as express authority for the application of that rule to the question of the
capacity of a married woman to contract. Few of them can be relied upon for the
application of that rule to any question relating to the existence of a contract as
distinguished from its interpretation or obligation or essential validity.
20
It must be agreed that this case is governed by the law of Michigan or of Illinois.
[176] If by the law of Michigan, it is clear, and is not disputed, that defendant has no
personal liability on the note, recoverable from her separate estate.
21
Assuming, however, that by the Michigan law of the forum the case is governed by
the law of Illinois, it presents the unique situation in the realm of conflict of laws
that by the law of Illinois, Burr v. Beckler, 264 Ill. 230, 106 N.E. 206, L.R.A. 1916A,
1049, Ann.Cas.1915D, 1132, the case is governed by the law of Michigan.
22
In Burr v. Beckler, the wife, a resident of Illinois, was sojourning temporarily in
Florida. Her husband owed a concern in Illinois, of which he was treasurer, on an
overdraft. He informed his wife that he could borrow the necessary money to pay
the overdraft from an estate of which he was trustee. The wife executed a note and
trust deed in Florida and mailed them to her husband, as trustee, at Chicago, Ill., as
he had directed her to do. The husband also signed the trust deed, but the opinion
does not state when. The court held that delivery of the note and trust deed by the
wife was complete in Florida, the law of that state governed her capacity to
contract, and, because she was not competent to enter into a contract under the
law of Florida, her note and trust deed were void.
23
The question is not whether the decision is in harmony with the law of Michigan, but
whether it governs this case. Here, manual delivery was as complete as in the Burr
Case because it was made to a bank which had been designated by the mortgagee
for that purpose.
24
In neither case had there been a binding engagement by the mortgagee to make
the loan prior to the delivery. In neither case had the money been paid in advance
of the delivery or contemporaneously therewith. There is nothing in the Burr Case to
indicate that the mortgagee could not have refused to make the loan or that the
mortgagors could not have refused to take the money or could not have abandoned
the matter after the wife deposited the papers in the mail. The Burr opinion
indicates no circumstance fixing the effect of the manual delivery which is not
present here. The Burr Case is directly applicable, and, consequently, under the law
of Illinois, it must be held that the capacity of defendant Clara A. Price is governed

by the law of Michigan. Under the law of Michigan, a married woman cannot bind
her separate estate through personal engagement for the benefit of others.
Defendant Price is not liable.
25
Affirmed, with costs to defendant Price.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.
1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after
all taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.
1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter

alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition,
the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided
the residuary estate into seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions
to the project of partition on the ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi.
As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article
16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16
a specific provision in itself which must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For
it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code
states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.