FACTS
Joseph Brimo, an alien testator (Turk), made his will in the Philippines. Stated in the will that his property should be distributed in accordance with Philippine law, and not that of his nation. The judicial administrator of the estate of the deceased filed a scheme of partition. However, one of the brothers of the deceased opposed the said partition and contends that the deceased was a Turkish citizen, which his disposition should be in accordance with the laws of his nationality.
ISSUE:
Whether or not the disposition shall be made in accordance with Philippine Laws.
RULING:
No, the Turkish law should govern the disposition of his property pursuant to Article 16. According to Article 16 of the Civil Code, such national law of the testator is the one to govern his testamentary dispositions.
The provision in the will is not valid. The last part of the second clause of the will expressly said that “it be made and disposed of in accordance with the laws in force in the Philippine Island”, this condition, described as impossible conditions, shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. Impossible conditions are further defined as those contrary to law or good morals. Said condition then is considered unwritten, hence the institution of legatees is unconditional and consequently valid and effective. Thus, national law of the testator shall govern in his testamentary dispositions.
The court approved the scheme of partition submitted by the judicial administrator, in such manner as to include Andre Brimo, as one of the legatees.
Friday, October 18, 2019
DE LA VIÑA v VILLAREAL
G.R. No. L-13982, July 31, 1920
FACTS
Narcisa Geopano filed a complaint of divorce in Court of First Instance in Iloilo against her husband, herein petitioner on the ground of concubinage since 1913. They had acquired properties, real and personal, all of which was under the administration of the petitioner. Because of her husband’s illicit relations, she was ejected from their conjugal home, for which she was obliged to live in Iloilo City, where she had established her habitual residence.
After filing the complaint, she presented a motion for preliminary injunction to restrain her husband from alienating or encumbering the conjugal property. Respondent Judge Antonio Villareal granted the motion. Petitioner, Diego De la Vina filed present case of petition for certiorari on the ground that judge had no jurisdiction to take cognizance of the action and exceeded his power and authority in issuing preliminary injuction. Hence this petition.
ISSUES
1. Whether or not a married woman ever acquires a residence or domicile separate from that of her husband during the existence of the marriage.
2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action?
RULING
Yes. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. The law making the domicile of the husband that of the wife is applicable only to their relations with third parties and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings.
2. No. The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable. Section 164 of Act No. 190 provides:
A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;
2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;
3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.
In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership.
Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action.
Narcisa Geopano filed a complaint of divorce in Court of First Instance in Iloilo against her husband, herein petitioner on the ground of concubinage since 1913. They had acquired properties, real and personal, all of which was under the administration of the petitioner. Because of her husband’s illicit relations, she was ejected from their conjugal home, for which she was obliged to live in Iloilo City, where she had established her habitual residence.
After filing the complaint, she presented a motion for preliminary injunction to restrain her husband from alienating or encumbering the conjugal property. Respondent Judge Antonio Villareal granted the motion. Petitioner, Diego De la Vina filed present case of petition for certiorari on the ground that judge had no jurisdiction to take cognizance of the action and exceeded his power and authority in issuing preliminary injuction. Hence this petition.
ISSUES
1. Whether or not a married woman ever acquires a residence or domicile separate from that of her husband during the existence of the marriage.
2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action?
RULING
Yes. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. The law making the domicile of the husband that of the wife is applicable only to their relations with third parties and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings.
2. No. The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable. Section 164 of Act No. 190 provides:
A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;
2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;
3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.
In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership.
Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action.
GALLEGO v VERRA
G.R. No. L-48641
November 24, 1941
FACTS
This is a petition for certiorari to review the decision of the CA affirming the decision of the CFI-Leyte, which declared illegal the petitioner's election to the office of municipal mayor of Abuyog, Leyte in the election of December 1940, on the ground that he did not meet the residence qualification. Gallego is a native of Abuyog. After his studies, he was employed as a schoolteacher in Catarman, Samar, as well as in some municipalities in Leyte. In 1937, he ran as municipal mayor in Abuyog but lost. In June 1938, he worked in Malaybalay, Bukidnon in a plantation of Bureau of Forestry to make up for the financial drawback caused by his loss in the previous election, and stayed there until he resigned in September 1940.Gallego registered himself as an elector in Bukidnon and voted in the election for assemblymen held in December 1938, and in January 1940. He obtained and paid for his residence certificate it was stated that he had resided in the said municipality for one and a half years. Under the foregoing facts, the CA declared that Gallego lost his domicile in Abuyog at the time he was elected mayor.
ISSUE:
Whether or not Gallego lost his domicile of origin in Abuyog, Leyte and acquired a new domicile in Malaybalay, Bukidnon.
RULING:
NO. In the definition of "residence"in the election law, it states that in order to acquire a domicile by choice, there must concur: (1) residence or bodily presence in the new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile.
The purpose to remain in the domicile should be for an indefinite period of time. The court believed that Gallego had no intention to stay in Malaybalay indefinitely because: (1) When he was employed as a teacher in Samar, he always returned in Abuyog and even resigned when he ran for office in 1937; (2) His departure was only for the purpose of making up for the financial drawback caused by his loss in the election; (3) He did not take his wife and children to Malaybalay with him; (4) He bought a piece of land in Abuyog and did not avail of the land in the plantation offered to him by the government; and (5) He visited his family thrice despite the great distance between Leyte and Bukidnon.
The Court said that the manifest intent of the law in fixing a residence qualification is to "exclude a stranger, or a newcomer, unacquainted with the conditions and needs of a community and not identified with the latter from an elective office to serve that community."
Moreover, the petitioner was a native there, had run for the same office before, and was now elected with a majority of 800 votes in a 3rd class municipality.
This is a petition for certiorari to review the decision of the CA affirming the decision of the CFI-Leyte, which declared illegal the petitioner's election to the office of municipal mayor of Abuyog, Leyte in the election of December 1940, on the ground that he did not meet the residence qualification. Gallego is a native of Abuyog. After his studies, he was employed as a schoolteacher in Catarman, Samar, as well as in some municipalities in Leyte. In 1937, he ran as municipal mayor in Abuyog but lost. In June 1938, he worked in Malaybalay, Bukidnon in a plantation of Bureau of Forestry to make up for the financial drawback caused by his loss in the previous election, and stayed there until he resigned in September 1940.Gallego registered himself as an elector in Bukidnon and voted in the election for assemblymen held in December 1938, and in January 1940. He obtained and paid for his residence certificate it was stated that he had resided in the said municipality for one and a half years. Under the foregoing facts, the CA declared that Gallego lost his domicile in Abuyog at the time he was elected mayor.
ISSUE:
Whether or not Gallego lost his domicile of origin in Abuyog, Leyte and acquired a new domicile in Malaybalay, Bukidnon.
RULING:
NO. In the definition of "residence"in the election law, it states that in order to acquire a domicile by choice, there must concur: (1) residence or bodily presence in the new locality; (2) an intention to remain there; and (3) an intention to abandon the old domicile.
The purpose to remain in the domicile should be for an indefinite period of time. The court believed that Gallego had no intention to stay in Malaybalay indefinitely because: (1) When he was employed as a teacher in Samar, he always returned in Abuyog and even resigned when he ran for office in 1937; (2) His departure was only for the purpose of making up for the financial drawback caused by his loss in the election; (3) He did not take his wife and children to Malaybalay with him; (4) He bought a piece of land in Abuyog and did not avail of the land in the plantation offered to him by the government; and (5) He visited his family thrice despite the great distance between Leyte and Bukidnon.
The Court said that the manifest intent of the law in fixing a residence qualification is to "exclude a stranger, or a newcomer, unacquainted with the conditions and needs of a community and not identified with the latter from an elective office to serve that community."
Moreover, the petitioner was a native there, had run for the same office before, and was now elected with a majority of 800 votes in a 3rd class municipality.
KOH v CA
G.R. No. L-40428
December 17, 1975
FACTS
Francisco T. Koh (Koh) filed before the Municipal Court of Mandaluyong, Rizal, a complaint of Forcible Entry and Detainer against the Jose Coloma (Coloma) for the possession of a house and lot located at 480, Barangka Drive, Mandaluyong, Rizal, on which the latter and his family were all residing. To settle the issue, Koh and Coloma entered into a compromise settlement in court whereby Coloma will pay Koh. Coloma failed to pay Koh. And the check that Coloma issued bounced which lead to Koh to file a criminal charge against Coloma in Pasig City and evicted the latter’s family on the house. However, the said criminal charge has been dismissed.
On February 21, 1974, Coloma filed a Complaint for damages against Koh in the Court of First Instance of Ilocos Norte. Koh filed a Motion to Dismiss the said Complaint on the grounds that the same fails to state a sufficient cause of action and that venue has been improperly laid. However, it was denied by the court. Filed a Motion for Reconsideration of the said Order reiterating therein the matter stated in his Reply to Opposition, which was not considered by the lower court, but it was also denied. the petitioner herein instituted certiorari proceedings with preliminary injunction before the Court of Appeal the same being but was also denied for failure of the petitioner to attach thereto certified true copies of the Orders appealed from by reason of their unavailability. Hence this petition.
ISSUE
Whether or not respondent Appellate Court erred and thus committed grave abuse of discretion in dismissing the petition for certiorari filed by petitioner before it and in holding that private respondent Jose P. Coloma is a resident of San Nicolas, Ilocos Norte, and thereby holding that venue of the action before the Court of First Instance of Ilocos Norte was proper, and in finding that the complaint of private respondent Coloma in the trial court recites a sufficient cause of action.
HELD
Yes, CA had committed grave abuse of discretion. It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the situs for bringing real and personal civil actions are fixed by the rules to attain the greatest convenience possible to the parties litigants by taking into consideration the maximum accessibility to them of the courts of justice. It is likewise undeniable that the term domicile is not exactly synonymous in legal contemplation with the term residence, for it is an established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons.
There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile, denotes a fixed permanent residence to which when absent, one has the in ten petitions of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile.
The law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court) in referring to the parties utilizes the words "resides or may be found," and not "is domiciled," thus:
Sec. 2(b) Personal actions — All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.
The court is convinced that the misunderstanding between petitioner and private respondent Coloma has gone to such an extent that it would not be surprising for respondent Coloma to be motivated by vengeance when he filed his action for damages against the petitioner in the C.F.I. of Ilocos Norte in order to get even with and impose all kinds of inconveniences on the petitioner. Otherwise,' it would have been easier and very much more convenient for both parties if the civil action for damages against petitioner had been filed either in the C.F.I. of Quezon City or Pasig, Rizal, because both petitioner and private respondent are admittedly residing within the greater Manila area.
Francisco T. Koh (Koh) filed before the Municipal Court of Mandaluyong, Rizal, a complaint of Forcible Entry and Detainer against the Jose Coloma (Coloma) for the possession of a house and lot located at 480, Barangka Drive, Mandaluyong, Rizal, on which the latter and his family were all residing. To settle the issue, Koh and Coloma entered into a compromise settlement in court whereby Coloma will pay Koh. Coloma failed to pay Koh. And the check that Coloma issued bounced which lead to Koh to file a criminal charge against Coloma in Pasig City and evicted the latter’s family on the house. However, the said criminal charge has been dismissed.
On February 21, 1974, Coloma filed a Complaint for damages against Koh in the Court of First Instance of Ilocos Norte. Koh filed a Motion to Dismiss the said Complaint on the grounds that the same fails to state a sufficient cause of action and that venue has been improperly laid. However, it was denied by the court. Filed a Motion for Reconsideration of the said Order reiterating therein the matter stated in his Reply to Opposition, which was not considered by the lower court, but it was also denied. the petitioner herein instituted certiorari proceedings with preliminary injunction before the Court of Appeal the same being but was also denied for failure of the petitioner to attach thereto certified true copies of the Orders appealed from by reason of their unavailability. Hence this petition.
ISSUE
Whether or not respondent Appellate Court erred and thus committed grave abuse of discretion in dismissing the petition for certiorari filed by petitioner before it and in holding that private respondent Jose P. Coloma is a resident of San Nicolas, Ilocos Norte, and thereby holding that venue of the action before the Court of First Instance of Ilocos Norte was proper, and in finding that the complaint of private respondent Coloma in the trial court recites a sufficient cause of action.
HELD
Yes, CA had committed grave abuse of discretion. It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the situs for bringing real and personal civil actions are fixed by the rules to attain the greatest convenience possible to the parties litigants by taking into consideration the maximum accessibility to them of the courts of justice. It is likewise undeniable that the term domicile is not exactly synonymous in legal contemplation with the term residence, for it is an established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons.
There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile, denotes a fixed permanent residence to which when absent, one has the in ten petitions of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile.
The law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court) in referring to the parties utilizes the words "resides or may be found," and not "is domiciled," thus:
Sec. 2(b) Personal actions — All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.
The court is convinced that the misunderstanding between petitioner and private respondent Coloma has gone to such an extent that it would not be surprising for respondent Coloma to be motivated by vengeance when he filed his action for damages against the petitioner in the C.F.I. of Ilocos Norte in order to get even with and impose all kinds of inconveniences on the petitioner. Otherwise,' it would have been easier and very much more convenient for both parties if the civil action for damages against petitioner had been filed either in the C.F.I. of Quezon City or Pasig, Rizal, because both petitioner and private respondent are admittedly residing within the greater Manila area.
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