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[ GR No. 3747, Nov 22, 1907 ]



11 Phil. 598

[ G.R. No. 3747, November 22, 1907 ]




On July 26, 1906, Yu Chengco petitioned the court to issue the necessary orders for the allowance of a will accompanying his said petition, and for the appointment of an administrator to take charge of the property of the estate and retain it in his custody during the pendency of the proceedings relative to the partition thereof.

The will presented to the court purports to be that of Jose Santiago Tiaoqui, executed by him before his death, which is said to have taken place in China in January, 1883, and it is said in the petition that "it is his last will and testament, written in Chinese characters, signed and made public by himself, and duly signed by three attesting witnesses * * *" (point No. 1); and "that said will was presented to the Chinese court of Dam Hua, Chinese Empire, and was duly allowed and sealed by said court, the latter being invested with jurisdiction over probate cases, in accordance with the provisions of the laws of the Chinese Empire" (point No. 3).

A certificate bearing a seal which reads: "American Consulate, Amoy, China," certifies that the seal affixed to the supposed will is the genuine and legitimate seal of the district magistrate of Naurva, Province of Fukien, China.

Su Yu Tchu, consul-general for the Chinese Empire at Manila, was presented as a witness by the petitioner, and testified that the will presented to the court was allowed and proved in China in accordance with the laws of that Empire; he further stated that there are written laws in force in China, but he had not studied them.

On this evidence the Court of First Instance of the city of Manila ordered the admission and allowance of the will in question, in conformity with the provisions of section 637 of the Code of Civil Procedure (Act No. 190).

Section 637 of the Code of Civil Procedure says that wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign country must be duly "authenticated." Such authentication, considered as a foreign judicial record, is prescribed by section 304, which requires the attestation of the clerk or of the legal keeper of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such chief judge or presiding magistrate, by the ambassador, minister, consul, vice-consul, or consular agent of the United States in such foreign country. And, should the will be considered, from an administrative point of view, as a mere official document "of a foreign country," it may be proved, "by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original." (Sec. 313, par. 8.)

None of the certifications required by the existing law for the authentication of a document executed in a foreign country appear in the record of this case; it is not authoritatively shown, nor has any sort of evidence been offered, that the document presented to the court is the will executed on the date alleged in the petition, and executed in conformity with the Chinese laws and duly authenticated by a competent court, and lastly that said will is a valid document according to the Chinese statutes.

The signatures of the persons subscribing the will as witnesses, and the official capacity or authority of any of those alleged to have authenticated the documents, are not certified to by any Chinese authority or official. There are absolutely no grounds of law or fact on which to declare that the document in question is a will duly authenticated in a foreign country, in order that it may be allowed, authenticated, and recorded in any court of these Islands.

The allegation of the petitioner in point No. 1 of his petition that "the will was written and made public by the alleged testator," and (point No. 3) that "the will was presented to the Chinese court of Dam Hua, Chinese Empire, and was duly allowed and sealed by said court," is controverted by the facts, for it appears on its face that the signature of the so-called testator was written in Spanish upon the seal, and that, therefore, said will was sealed before it was signed.

On the grounds stated above, the judgment appealed from is reversed and it is declared that the document presented to the court as the will of one Jose Santiago Tiaoqui, and alleged to have been executed and authenticated in China, can not be allowed, authenticated nor recorded in the courts of the Philippine Islands. No special ruling is made as to costs. So ordered.

Torres, Johnson, Willard, and Tracey, JJ., concur.