This paper is a critical examination of the Supreme Courts ruling in Aznar v.

Garcia (7 SCRA 95
[1963]). I argue that the judgment therein is objectionable on three grounds: (1) misutilization of
Philippine law through a misapplication of national law as construed; (2) misconstruction of foreign
(California) law; and (3) misadoption of the doctrine of renvoi. These exceptions will be discussed and
elaborated ad seriatim.

1. The first thing that should concern us here, before proceeding to an assessment of Aznar, is the
proper determination as to what principle obtains in this jurisdiction with respect to personal status,
property, and acts and contracts. The conflicts rules with respect to these matters are found in articles 15,
16, and 17 of the Civil Code.

In article 15, the present Civil Code provides that Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad. It will be seen at once that the Civil Code, or Philippine law, applies to Filipino
citizens, wherever they may be, in regard to (a) family rights and duties, (b) status, (c) condition, and (d)
legal capacity. Thus, the theory of nationality (lex patri) prevails in this jurisdiction, as opposed to the
domiciliary theory (lex domicilii) which obtains in common law jurisdictions like the United States (see
Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1 [1974], p. 48).
The reason for this rule, which is the same as that found in article 9 of the old Civil Code, is that
citizenship is not lost by mere residence in another country, and therefore capacity to marry, divorce, etc.
of Filipino citizens residing outside of the Philippines must be governed by Philippine law (Capistrano,
Civil Code of the Philippines with Comments and Annotations, vol. 1 [1950], p. 18). A corollary of the
principle in article 15 is that Philippine law applies exclusively to Filipino citizens in the cases cited
therein.

With respect to inter vivos transfers of real and personal property (Aquino and Gri o-Aquino, The
Civil Code of the Philippines and Family Code, vol. 1 [1990], p. 34), as well as incidents relative thereto
(such as taxation), paragraph 1 of article 16 of the Civil Code provides that Real as well as personal
property is subject to the law of the country where it is situated. The principle embodied here is what is
called lex situs, which subjects property, whether movable or immovable, to the law of the country where
it is situated. The present Code retained the lex situs rule with regard to real property, but changed the rule
with respect to personal property. Formerly or under the old Code, movables were subject to the same law
which governed their owner pursuant to the principle mobilia sequuntur personam (the property follows
the owner) (see Padilla, Civil Law: Civil Code Annotated, vol. 1 [1975], p. 68; Tolentino, op. cit., p. 50).
The reason for this change is two-fold: first, in view of the modern trend to dissociate personal property
from its owner, and second, because a great deal of the movables in the country belonged to foreign
nationals (Capistrano, op. cit., p. 20). Thus, Philippine law applies to real and personal property located in
the Philippines.

However, the rule on succession or mortis causa transfers of property appears to be different. In
paragraph 2 of article 16, the Civil Code provides:

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 wherein said property may be found.

Further, article 1039 was added in the present Code, which provides that Capacity to succeed is
governed by the law of the nation of the decedent. As is immediately apparent, the principle enunciated
in paragraph 2, article 16 and article 1039 is the same (Balane, Jottings and Jurisprudence in Civil Law
[2010], p. 563). Thus, the national law of the decedent governs (a) the order of succession, (b) the amount
of successional rights, (c) the intrinsic validity of testamentary provisions, and (d) capacity to succeed.
Reading the quoted provision as a whole, it appears that in succession, the rule followed is lex patri
regardless of the nature and location of the property under succession.

Dean Capistrano explains the rationale for the above principle in article 16, paragraph 2, thus:
With regard to succession there is only one will, express in testamentary and presumed in intestate
succession. The oneness and universality of an inheritance can not be divided or broken up merely
because of the different countries where properties of the estate are situated. Hence, succession must be
governed by only one law, the national law of the decedent, which is the generally accepted principle on
the subject (op. cit., p. 21). Therefore, article 16, paragraph 1 must be viewed as a related but separate
rule from article 16, paragraph 2related because both certainly deal with property, but separate because
each is concerned with different circumstances. The first paragraph of article 16 applies to all
transactions, events, relations, etc. involving real or personal property, including property under
succession, but excluding the specific successional matters relating to the distribution of property mortis
causa, or those exclusively governed by the law on succession, which are covered by the second
paragraph of article 16. Thus, the real property of a deceased foreign national in the Philippines is subject
to estate tax (art. 16, par. 1) but the distribution thereof to his heirs is controlled by his national law (art.
16, par. 2). It will be noted that this interpretation does not run counter to the legislative intent as related
by Dean Capistrano quoted above. It is therefore submitted that the above explication is the proper
reading of the dictum that

...the second paragraph of [article 16] applies only when a legal or testamentary
succession has taken place in the Philippines 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 16] can be invoked only when the deceased was vested
with a descendible interest in property within the jurisdiction of the Philippine
Islands. (Gibbs v. Government, 59 Phil. Rep. 293 [1933], on p. 300,
underscoring supplied)

Next, with respect to acts and contracts, paragraph 1 of article 17 of the Civil Code lays down the
rule of lex loci celebrationis (the law of the place of execution). According to this principle, the formal
validity of contracts, wills, and other instruments is governed by the law of the place of execution. The
reason for this rule is practical necessity (Capistrano, op. cit., p. 23). The exception to the lex loci
celebrationis principle is provided in paragraph 2 of the same article which mandates that Philippine law
should govern the form of contracts executed abroad before diplomatic or consular officials of the
Philippines.

The overriding exception to the lex loci celebrationis rule is given in paragraph 3, article 17 of
the Civil Code. This well-known rule on public policy renders ineffectual any agreement entered into in a
foreign jurisdiction which is contrary to Philippine public policy, public order, or good customs. In
Private International Law, foreign laws (in addition to foreign judgments and contracts executed abroad)
shall not be recognized if (a) it would contravene a well-established and important policy of the forum, or
(b) it would be contra bonos mores (Padilla, op. cit., pp. 76-77).

In sum, the following conflicts rules obtain in the Philippines: lex patri (art. 15, 16, par. 2, and
1039), lex situs (art. 16, par. 1), lex loci celebrationis (art. 17, par. 1), lex fori (art. 17, par. 3), and
Philippine law (art. 15 and 17, par. 2). For the purposes of this paper, the following suggested
interpretation of the said Philippine conflicts rules is adoptedPhilippine law applies exclusively to
Filipino citizens wherever they may be in regard to family rights and duties, status, condition, and legal
capacity. Philippine law also applies to inter vivos conveyances of real and personal properties (as well as
incidents relative thereto) located in the Philippines, including property under succession, whether owned
by Filipino or foreign nationals. Corollarily, lex situs would apply if the real or personal property is
located outside of the Philippines even if the owner thereof be a Filipino. But with regard to successional
matters, including mortis causa transfers and distributions of property, the law applicable depends on the
nationality of the decedent, despite the fact that succession almost always involves movables and
immovables which may be situated in the Philippines. Finally, acts and contracts are valid in the
Philippines if valid where celebrated, provided that they do not contravene important Philippine public
policy considerations.

2. There seems to be no doubt as to what Philippine law means. There is doubt, however, or so
the Supreme Court said, as to what national law as mentioned in article 16, paragraph 2 of the Civil
Code means. Thus, construing the phrase national law of the person whose succession is under
consideration, the Court said in the above-cited case of Aznar:

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...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 which the decedent is a citizen, in the case at
bar, the private law of the State of California. (on p. 102)

Plainly therefore, California law must govern the intrinsic validity of the testament of the deceased in
Aznar, a resident or domiciliary of the Philippines but a citizen of California. At this point the Court
seems to be on the right path in arriving at the correct decision by applying California law.

Unfortunately for the appellee in Aznar, who was a legitimate child of the testator, the Court
applied Philippine law to the will of the testator therein. The Court sustained the appellants argument that
Philippine law should apply, hence the testament, the provisions of which impaired her legitime, must be
annulled. In that case, the appellee was given the residue of the estate of the testator, while the appellant
(acknowledged natural or illegitimate child) was bequeathed the sum of P3,600.00. As a result, the
illegitimate child was given justice by recognizing her right to legitime under the Civil Code (see
Coquia and Pangalangan, Conflict of Laws: Cases, Materials, and Comments [2000], p. 106), a kind of
justice given at the expense of the law.

In applying Philippine law, the Court in Aznar patently disregarded the express provisions of the
Civil Code, namely articles 15, 16, and 1039 thereof, in derogation not only of the letter, but also of the
spirit of the law. As indicated above, article 15 should be construed to mean that Philippine law applies
only to Filipino citizens concerning the matters enumerated therein. By applying Philippine law to the
testator in Aznar who was a citizen of California, the Court therefore went against article 15.

As indicated also above, article 16 provides for the principle of lex situs with respect to incidents
to and transfers inter vivos of property (par. 1) and lex patri (par. 2) with regard to successional matters
enumerated therein, including transfers of property mortis causa (in rel. to. art. 1039). Aznar undoubtedly
involved the succession of a foreign testator and consequently, dealt with successional matters (including
transfers of property mortis causa), specifically, the amount of successional rights, intrinsic validity of
testamentary provisions, and capacity to succeed. It follows, then, that article 16, paragraph 2 calling for
the application of lex patri governs. As construed by the Court and as pointed out above, the lex patri
of the decedent in Aznar was California law. Following this logic, therefore, the Court in Aznar had no
other alternative but to apply California law in determining the intrinsic validity of the testators will. But
shockingly, the Court ruled in that case that Philippine law applies. This blatantly erroneous application of
Philippine law to the intrinsic validity of the testament of a foreign national can only be attributed to a
misapplication of the term national law as construed by the Court itselfan intrinsic irony.

3. In concluding that Philippine law should govern the validity of the testamentary provisions of
the will involved in Aznar, the Court, after consulting article 16, paragraph 2 of the Civil Code, looked at
two apparently distinct California laws to which article 16, paragraph 2 just mentioned, it was said,
pointed to. The first was the California Probate Code, cited and relied upon by the appellee therein, under
which a person is given absolute testamentary freedom to dispose of his property in the form and manner
he desires (citing In re Kaufman, 117 Cal. 286). The second, invoked by the appellant therein, was article
946 of the Civil Code of California quoted hereunder

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.

which, it will be seen, adhered to the principles of mobilia sequuntur personam and lex domicilii, two
theories, it will be noted, that are rejected in Philippine jurisdiction.

In justifying the use of Philippine law in Aznar, the Court made a distinction between California
citizens domiciled in California and California citizens domiciled abroad, and unilaterally declared that
each category corresponded to a specific provision of law that is applicable, to the exclusion of any other
statutes. Said the Court:

We note that Article 946 of the California Civil Code is its conflict of laws rule,
while the rule applied in In re Kaufman...is 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] 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.

xxx

...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-of-laws rule for those domiciled abroad. (on pp. 106-107)

The ratiocination of the Court is untenable. First, it is unwise to make distinctions as above, let
alone construe foreign laws, in the absence of proof of the intent of California legislators. The appellant in
Aznar did not even cite any jurisprudence, nay deliberations of the Congress of California to support the
view that article 946 of the California Civil Code was intended to apply to citizens domiciled abroad, and
by extension, that the cited principle in the Probate Code was intended to govern only citizens domiciled
in California. This is not a question of intentional presumption as in the case of processual presumption,
which in itself is a totally problematic invention of the Court. The distinction pointed out above appears to
be strained and solely drawn in order to justify the application of Philippine law. It is incredible that the
Court in Aznar did not merely rely on a product of its own mind which is totally bereft of any support, but
also conjured up a distinction which, aside from being imaginary, could very well be erroneous.

Second, the Court grievously erred in applying article 946 of the California Civil Code in Aznar
inasmuch as that case involved succession, and article 946 does not in any way deal with successional
matters. Reason demands that the applicable law should be the California Probate Code, which
specifically governs succession problems. It is elementary that specific laws prevail over general ones.

Third, granting that article 946 of the California Civil Code were the applicable national law of
the decedent, still the Court grievously misconstrued the same. A fair reading of the provision under
consideration would reveal that lex domicilii (i.e. Philippine law) would apply only if there is no law to
the contrary in the place where personal property is situated; otherwise, lex situs governs. There is no
question that what was particularly in question in Aznar was the legacy of P3,600.00 bequeathed to the
appellant therein, and that money is considered as personal property. Therefore, it appears that the said
legacy is covered by article 946 of the California Civil Code (assuming it were applicable). However, the
situs of the money subject of the legacy was never established. It was neither alleged nor proved that the
legacy came from the testators money earned by him in the Philippines, thereby preventing at once the
application of article 946 which presupposes that the situs of the personal property is already determined.
Assuming that the situs of the money was established to be the Philippines, still article 946 would not
apply for the simple reason that the rule provided in that article (lex domicilii thru mobilia sequuntur
personam) is contrary to the rule obtaining here (article 16, par. 1) concerning property, which is lex situs.
It must be noted that article 946 specifically provides that if there is no law to the contrary in the place
where personal property is situated, lex domicilii must be followed, and as pointed out above, the
principle mobilia sequuntur personam has been omitted in the present Philippine Civil Code. It may be
argued that the difference between article 946 of the California Civil Code and its counterpart version in
the Philippine Civil Code, namely article 16, paragraph 1 thereof, is only in principle because in the final
analysis, both lex domicilii and lex situs point to Philippine law. This contention is easily debunked by the
fact that lex domicilii and lex situs will not always be the same, as in the supposed case, and if they were
different, a divergent result would arise.

From the above disquisition, it will readily be seen that the Court in Aznar committed several
errors which may be summarily enumerated as follows: (a) making distinctions and construing California
law; (b) speculating on the legislatively intended difference between and application of article 946 of the
California Civil Code and the Probate Code of the same State; (c) applying article 946 of the California
Civil Code (which is the counterpart of article 16, paragraph 1 of the Civil Code of the Philippines) in a
succession case, particularly a transfer of property mortis causa, when said article properly applies inter
alia to inter vivos conveyances; and (d) misconstruing article 946.

4. The most glaring mistake that the Court made in Aznar, however, was to invoke article 16,
paragraph 2 of the Philippine Civil Code in order to justify its reliance on article 946 of the California
Civil Code (which was the wrong law) which supposedly referred the case back to the Philippines. This
process of reference is called the renvoi doctrine.

Renvoi is a procedure whereby a jural matter presented is referred by the conflict of laws rules of
the forum to a foreign state, the conflict of laws rule of which, in turn, refers the matter to the law of the
forum or a third state (Coquia and Pangalangan, op. cit., p. 102). Reference back to lex fori is sometimes
called remission while reference to another state is termed transmission (idem.). Professor Lorenzen
defines the concept as a convenient descriptive term denoting that the judge of the forum is to take
account of the rules of Private International Law prevailing in the country to which the lex fori refers,
without regard to any particular theory or to the particular law which may be deemed to control in the
end (The Renvoi Theory and the Application of Foreign Law, in 10 Columbia Law Review 190-207
[1910], p. 190). So much for the definitions.

The factual and legal circumstances in Aznar rule out the possibility of the applicationor more
appropriately, acceptanceof renvoi for three reasons. In the first place, the factual milieu in Aznar is not
substantially different from that in Philippine Trust Co. v. Bohanan (106 Phil. Rep. 997 [1960]) involving
a testator from Nevada domiciled in the Philippines who in his will deprived his wife and children of their
legitimes. In Bohanan, the Court ruled that Nevada law (which did not provide for a system of legitimes)
as the national law of the decedent should govern the intrinsic validity of the testators will. The Court in
Aznar could have easily brushed aside the appellants arguments therein on the strength of the Bohanan
ruling, if judicial consistency is to be desired.

In the second place, and more importantly, there was a legal deficiency in Aznar, so to speak,
which fatally precluded the application of the theory of renvoi. It must be noted that the Court did not
even bother to explain in that case the proper application of renvoi (although in the later case of Bellis v.
Bellis [20 SCRA 358 (1967)], the Court said that renvoi is usually pertinent where the decedent is a
national of one country, and a domicile (sic) of another [on p. 361]a statement which in itself is not
accuratereferring to the case of Aznar). It is true that in Aznar the Court defined renvoi by quoting
various authors and other secondary sources, but never did the Court there attempt, in its own words, to
explicate further. We therefore have to look at how some scholars on the subject identified the appropriate
use of this renvoi theory.

Consider the following account of Professor Lorenzen:

The [renvoi] problem is a general one and is not confined to those branches of
the law in which the lex domicilii and the lex patri clash... It arises whenever
the rules of Private International Law of the countries in question differ. The
question, therefore, is: Must the judge when the law of the forum prescribes the
application of a foreign law take notice of the rules governing the Conflict of
Laws in such foreign country, and, if he must, in what sense and to what extent?
(op. cit., p. 191, underscoring supplied)

Thus, renvoi is relevant in cases where the conflicts rules of two States on a particular matter are contrary
to each other. Based on the above-quoted portion, renvoi is not, and may not be, germane simply because
a person is a citizen of one country and a resident of another, contrary to the Courts implication in Aznar,
as clarified in Bellis indicated above. For instance, a decedent may be a citizen of one State but a
domiciliary of another, but both States share the same conflicts rules. To the same effect are the
pronouncements made by the authorities relied upon by the Court in Aznar (on pp. 103-106).

Recall that in Aznar, the Court noted that article 946 of the California Civil Code is Californias
conflicts rule, while article 16, paragraph 2 of the Philippine Civil Code is the conflicts rule here. Recall
also that Aznar involved successional matters (amount of successional rights, intrinsic validity of
testamentary provisions, capacity to succeed), and that article 16, paragraph 2 of our Civil Code is the
applicable conflicts rule in succession. So far, at least in the immediate analysis, the Court seemed to be
on point. But tested against Professor Lorenzens statement quoted abovethat the problem of renvoi
arises whenever the rules of Private International Law of the countries in question differthe Courts
instantaneous conclusion in Aznar that

...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 testators 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. (p. 107)

does not hold water. There is no question that different countries each have a set of internal or local rules
and conflicts rules, and both have to be taken into account in considering the doctrine of renvoi (Salonga,
Private International Law [1995], pp. 221-240; Lorenzen, op. cit.). Specifically, in applying the principle
of renvoi, it is necessary to identify the competing conflicts rules. Still, in the process, it is crucial to
determine the proper conflicts rule applicable in a given situation. It is this latter process that the Court
seriously missed on in Aznar.

Rightly, the Court in Aznar applied article 16, specifically paragraph 2 thereof, of the Philippine
Civil Code, the conflicts rule pertaining to successional matters. The Court, however, wrongly referred to
article 946 of the California Civil Code as the supposed conflicts rule of California on the matter,
inasmuch as that article does not refer at all to succession. On the contrary, it appears that article 946 of
the California Civil Code is the analogous provision of article 16, paragraph 1 of the Philippine Civil
Code relating to property not under succession. The national law of the decedent referred to in article
16, paragraph 2 of our Civil Code, therefore, cannot and should not be construed to refer to article 946 of
the California Civil Code for the simple reason that the latter is not concerned with succession and instead
governs generally movables (not otherwise under succession) just like how article 16, paragraph 1 of our
Civil Code regulates matters relating to conveyances of real and personal property inter vivos as well as
incidents relative to such properties. In the final analysis, there was a void left unfilled,a missing link, a
legal deficiency so to speak, an unestablished critical connection ; that is to say, that the corresponding
conflicts rule obtaining in California with respect to property under succession was neither pleaded nor
provedby the appellant in Aznar in order to warrant the acceptance of renvoi.

In the third place, brushing aside the substantive aspect of Aznar, the utilization of renvoi in that
case is not only questionable but also inequitable because that principle has theretofore been unknown in
Philippine jurisprudence. It may have skipped the attention of many a reader but the appellants counsel in
Aznar is the famous internal law expert Dr. Jovito Salonga. It was through this learned counsels genius
(i.e., his novel introduction of the doctrine of renvoi) that the Court, probably bedazzled, unprecedentedly
ruled the way it did. This observation is buttressed by the fact that the Court remarked in the later case of
Bellis that the parties do not submit the case on, nor even discuss, the doctrine of renvoi (on p. 361) and
that [a]ppellants position is...not rested on the doctrine of renvoi...[because] they never invoked nor
even mentioned it in their arguments (on p. 362). The corollary to that statement in Bellis is that had the
appellants therein pleaded renvoi then that principle could have very well played a part in the outcome of
that case. The outcome, of course, is not guaranteed to be correct, just like Aznar.

In sum, the Court in Aznar had only one rational option from the beginning: to apply the Probate
Code of California as the national law of the testator therein not only because that Code specifically
regulates successional matters, the subject matter of Aznar, but more importantly, because that case did
not contain a genuine issue of competing conflicts rules of different States calling for the application of
renvoi. Also, equity dictates that courts should not apply concepts that they do not immaculately know
especially if no explanation was even attempted or offered as to the reason for such utilization.

5. In the final analysis, this paper is an evaluation of the Supreme Court itself. This paper is
essentially concerned not only with the question of correctness, but more significantly, of sound
discretion or judgment. In Aznar, the Court seemed to be so easily attracted to foreign and novel concepts
formerly unheard of in Philippine jurisprudence to the point of momentarily overlooking settled precepts
if only to apply an unfamiliar idea. This is not to say, however, that Philippine law must remain
provincial in the sense of being loath to recognize foreign and new principles, when these concepts will
supply a deficiency in our law if properly utilized. What is desired is but a more critical acceptance,
treatment, and employment of international principles in the Philippine setting, for otherwise, what Mr.
Justice Perfecto said in his dissenting opinion in Tubb v. Greiss (78 Phil. Rep. 249 [1947]) might be true:
that a portentous judicial vogue would be created if the Court would simply imitate the fashionable.