EN BANC

[G.R. No. L-8409. December 28, 1956.]

In the Matter of the Intestate of the deceased Andres Eusebio.

EUGENIO EUSEBIO, petitioner-appellee, vs. AMANDA EUSEBIO,
VIRGINIA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO,
VICENTE EUSEBIO, and CARLOS EUSEBIO, oppositor-appellant.

Francisco M. Ramos and Valeriano Silva for appellee.

Filemon Cajator for appellants.

SYLLABUS

1. VENUE; ESTATE OF DECEASED WHERE SETTLED; RESIDENCE

AT THE TIME OF THE DEATH; DOMICILE OF ORIGIN. — Where it is apparent,
from the facts duly established, that the domicile of origin of the decedent was San
Fernando, Pampanga, where he resided for over seventy (70) years, the presumption
is that he retained such domicile, and, hence, residence, in the absence of satisfactory
proof to the contrary, for it is well-settled that "a domicile once required is retained
until a new domicile is gained." (Minor, Conflict of Laws, p. 70; Restatement of the
law of conflicts of laws, p. 47; In re Estate of Johnson, 192 Iowa 78).

2. DOMICILE; NOT CHANGED BY PRESENCE IN A PLACE FOR

ONE'S OWN HEALTH. — It is well settled that "domicile is not commonly changed
by presence in a place merely for one's own health," even if coupled with knowledge
that one will never again be able, on account of illness to return home." (1 Beale,
Conflict of Laws, pp. 172-173; Sell also Shenton vs. Abbott, Ind. 15, A. 2d. 906; US.
vs. Knight, D.C. Mont., 291 Fed. 129).

DECISION

CONCEPCION, J : p

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 This case was instituted on November 16, 1953, when Eugenio Eusebio filed
with the Court of First Instance of Rizal, a petition for his appointment as
administrator of the estate of his father, Andres Eusebio, who died on November 28,
1952, residing, according to said petition, in the City of Quezon. On December 4,
1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio,
objected to said petition, stating that they are illegitimate children of the deceased and
that the latter was domiciled in San Fernando, Pampanga, and praying, therefore, that
the case be dismissed upon the ground that venue had been improperly filed. By an
order, dated March 10, 1954, said court overruled this objection and granted said
petition. Hence, the case is before us on appeal taken, from said order, by Amanda
Eusebio, and her aforementioned sister and brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on

November 28, 1952, for Rule 75, section 1, of the Rules of Court, provides:

"Where estate of deceased persons settled. — If the decedent is an

inhabitant of the Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which he resides at the
time of his death, and if he is an inhabitant of a foreign country, the court of
First Instance of any province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction
appears on the record."

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was,
and had always been, domiciled in San Fernando, Pampanga, where he had his home,
as well as some other properties. Inasmuch as his heart was in bad condition and his
son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon
City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A España
Extension, in said City (Exhibits 2). While transferring his belongings to this house,
soon thereafter, the decedent suffered a stroke (probably heart failure), for which
reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where
the decedent remained until he was brought to the UST Hospital, in the City of
Manila, sometime before November 26, 1952. On this date, he contracted marriage in
articulo mortis with his common law wife, Concepcion Villanueva, in said hospital.
Two (2) days later, he died therein of "acute left ventricular failure secondary to
hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A).

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 Consequently, he never stayed or even slept in said house at España Extension.

It being apparent from the foregoing that the domicile of origin of the decedent
was San Fernando, Pampanga, where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and, hence, residence, in the absence of
satisfactory proof to the contrary, for it is well-settled that "a domicile once acquired
is retained until a new domicile is gained" (Minor, Conflict of Laws, p. 70;
Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa,
78). Under the circumstances surrounding the case at bar, if Andres Eusebio
established another domicile, it must have been one of choice, for which the
following conditions are essential, namely: (1) capacity to choose and freedom of
choice; (2) physical presence at the place chosen; and (3) intention to stay therein
permanently (Minor, Conflict of Laws, pp. 109-110; Goodrich, Conflict of Laws, p.
169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off.
Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of
choosing a domicile and had been in Quezon City several days prior to his demise.
Thus, the issue narrows down to whether he intended to stay in that place
permanently.

There is no direct evidence of such intent. Neither does the decedent appear to
have manifested his wish to live indefinitely in said city. His son, petitioner-appellee,
who took the witness stand, did not testify thereon, despite the allegation, in his
answer to the aforementioned, opposition of appellants herein, that "the deceased
(had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said
appellee did not introduce the testimony of his legitimate full brother and son of the
decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at No.
889-A España Extension was purchased, and who, therefore, might have cast some
light on his (decedent's) purpose in buying said property. This notwithstanding, the
lower court held that the decedent's intent to stay permanently in Quezon City is
"manifest" from the acquisition of said property and the transfer of his belongings
thereto. This conclusion is untenable.

The aforementioned house and lot were bought by the decedent because he had
been adviced to do so "due to his illness", in the very words of herein appellee. It is
not improbable — in fact, its is very likely — that said advice was given and followed
in order that the patient could be near his doctor and have a more effective treatment.
It is well settled that "domicile is not commonly changed by presence in a place
merely for one's own health", even if coupled with "knowledge that one will never
again be able, on account of illness, to return home." (The Conflict of Laws, by Beale,
Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs.
Knight, D.C. Mont., 291 Fed. 129).
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 Again, the decedent did not part with, or alienate, his house in San Fernando,
Pampanga. Moreover, some of his children, who used to live with him in San
Fernando, Pampanga, remained in that municipality. Then, again, in the deed Exhibit
2, by virtue of which said property at No. 889-A España Extension, Quezon City, was
conveyed to him, on October 29, 1952, or less than a month before his death, the
decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B"
residence certificates used by the decedent in acknowledging said Exhibit 2, before a
notary public, was issued in San Fernando, Pampanga. Lastly, the marriage contract
Exhibit 1, signed by the deceased when he was married, in articulo mortis, to
Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days
prior to his demise, stated that his residence is San Fernando, Pampanga. It is worthy
of notice that Alfonso Eusebio, one of the legitimate full brothers of the herein
appellee, was a witness to said wedding, thus indicating that the children of the
deceased by his first marriage, including said appellee, were represented on that
occasion and would have objected to said statement about his residence, if it were
false. Consequently, apart from appellee's failure to prove satisfactorily that the
decedent had decided to establish his home in Quezon City, the acts of the latter,
shortly and immediately before his death, prove the contrary. At any rate, the
presumption in favor of the retention of the old domicile 1(1) — which is particularly
strong when the domicile is one of the origin 2(2) as San Fernando, Pampanga,
evidently was, as regards said decedent — has not been offset by the evidence of
record.

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in
evidence, and refused to entertain the same in the order appealed from. The reasons
therefor are deducible from its resolution in rejecting said documents during the
hearing of the incident at bar. The court then held:

"Exhibits '1' and '2' are rejected but the same may be attached to the records for
whatever action oppositors may want to take later on because until now the
personality of the oppositors has not been established whether or not they have
a right to intervene in this case, and the Court cannot pass upon this question as
the oppositors refuse to submit to the jurisdiction of this Court and they
maintain that these proceedings should be dismissed. (P. 10, t. s. n.)

In short, the lower court believed that said documents should not be admitted
in evidence before appellants had established their "personality" to intervene in the
case, referring seemingly to their filiation. When appellants, however, sought, during
said hearing, to establish their relation with the deceased, as his alleged illegitimate
children, His Honor, the trial Judge sustained appellee's objection thereto stating:

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 "Your stand until now is to question the jurisdiction of this Court, and it seems
that you are now trying to prove the status of your client; you are leading to
that. The main point here is your contention that the deceased was never a
resident of Quezon City and that is why I allowed you to cross-examine. If yon
are trying to establish the status of the oppositors, I will sustain the objection,
unless you want to submit to the jurisdiction of the Court. This is not yet the
time to declare who are the persons who should inherit." p. 1, t. s. n.)

Thus, the lower court refused to consider appellant's evidence on the domicile
of the decedent, because of their alleged lack of "personality", but, when they tried to
establish such "personality", they were barred from doing so on account of the
question of venue raised by them. We find ourselves unable to sanction either the
foregoing procedure adopted by the lower court or the inferences it drew from the
circumstances surrounding the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions.
While, on the one hand, he declared that appellants could not be permitted to
introduce evidence on the residence of the decedent, for they contested the
jurisdiction of court, on the other hand, he held, in the order appealed from, that, by
cross-examining the appellee, said appellants had submitted themselves to the
authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the
hearing, in the lower court, appellants' counsel announced that he would take part
therein "only to question the jurisdiction, for the purpose of dismissing this
proceeding," (p. 2, t. s. n.). During the cross-examination of petitioner herein, said
counsel tried to elicit the relation between the decedent and the appellants. As, the
appellee objected thereto, the court said, addressing appellants' counsel: "Your stand
until now is to question the jurisdiction of the court . . .. If you are trying to establish
the status of the oppositors, I will sustain the objection, unless you want to submit to
the jurisdiction of the court" (p. 7, t. s. n.). Thereupon, appellants' counsel refused to
do so, stating: "I will insist on my stand." Then, too, at the conclusion of the hearing,
the court rejected Exhibits 1 and 2, for the reason that appellants "refuse to submit to
the jurisdiction of this court and they maintain that these proceedings should be
dismissed." Thus, appellants specifically made of record that they were not submitting
themselves to the jurisdiction of the court, except for the purpose only of assailing the
same, and the court felt that appellants were not giving up their stand, which was, and
is, a fact.

At any rate, appellants were entitled to establish facts tending to prove, not
only their right to object to appellee's petition, but, also, that venue had been laid
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 improperly. Such facts were: (a) their alleged relationship with the decedent, 3(3)
which, if true, entitle them to proceed him under the Civil Code of the Philippines;
and (b) his alleged residence is Pampanga. In other words, the lower court should
have admitted Exhibits 1 and 2 in evidence and given thereto the proper effect, in
connection with the issue under consideration.

Appellee, however, asks: "What will happen if this case be dismissed in the
Court of First Instance of Quezon City on the ground of lack of jurisdiction or
improper venue?" In this connection, it appears that on November 14, 1953, the Clerk
of the Court of First Instance of Pampanga received a petition of appellants herein,
dated November 4, 1953, for the settlement of the "Intestate Estate of the late Don
Andres Eusebio". Attached to said petition was another petition for the docketing
thereof free of charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter
petition was granted by an order dated November 16, 1953, which was received by
the cashier of said court on November 17, 1953, on which date the case was docketed
as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando and
Alfonso, all surnamed Eusebio (the children of the decedent by first marriage,
including petitioner herein), moved for the dismissal of said proceedings, owing to the
pendency of the present case, before the Court of First Instance of Rizal, since
November 16, 1953. This motion was granted in an order dated December 21, 1953,
relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to which
"the court first taking cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at
bar. Said order did not pass upon the question of domicile or residence of the
decedent. Moreover, in granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently refers to
cases triable before two or more courts with concurrent jurisdiction. It could not
possibly have intended to deprive a competent court of the authority vested therein by
law, merely because a similar case had been previously filed before a court to which
jurisdiction is denied by law, for the same would then be defeated by the will of one
of the parties. More specifically, said provision refers mainly to non- resident
decedents who have properties in several provinces in the Philippines, for the
settlement of their respective estates may be undertaken before the court of first
instance of either one of said provinces, not only because said courts then have
concurrent jurisdiction — and, hence, the one first taking cognizance of the case shall
exclude the other courts — but, also, because the statement to, this effect in said
section 1 of Rule 75 of the Rules of Court immediately follows the last part of the
next preceding sentence, which deals with non-resident decedents, whose estate may
be settled before the court of first instance of any province in which they have
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 properties.

In view, however, of the last sentence of said section, providing that:

". . . The jurisdiction assumed by a court, so far as it depends on the

place of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceedings, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record."

if proceedings for the settlement of the estate of a deceased resident are instituted in
two or more courts, and the question of venue is raised before the same, the court in
which the first case was filed shall have exclusive jurisdiction to decide said issue,
and we so held in the case of Taciana Vda. de Borja vs. Tan, L-7792 (July 27, 1955).
Should it be decided, in the proceedings before the said court, that venue had been
improperly laid, the case pending therein should be dismissed and the corresponding
proceedings may, thereafter, be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death,
domiciled in San Fernando, Pampanga; that the Court of First Instance of Rizal had
no authority, therefore, to appoint an administrator of the estate of the deceased, the
venue having been laid improperly; and that it should, accordingly, have sustained
appellants' opposition and dismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition
is dismissed, with costs against the appellee. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J. B. L.,

Endencia and Felix, JJ., concur.

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