Frankel v. Frankel

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 31287 December 27, 1929 In the matter of the Estate of R. H. Frankel, deceased. ANNA HARTSKE, CLARA WEBBER and FREMA FISCHLER, petitioners-appellants, vs. FRED FRANKEL and PHILIPPINE TRUST CO., appellees. J. A. Wolfson for appellant Hartske.

Ross, Lawrence and Selph for appellant F. Fischler. Gibbs and McDonough for appellant Webber. Harvey and O'Brien for appellee Frankel.

No appearance for the other appellee. STATEMENT Eugene Fischler and Herman Frankel were married in Austria in 1895, and he died intestate in Manila in September, 1923. September 12, 1918, his wife executed her last will and testament, and died in Manila, September, 1924, and her will was admitted to probate October 21, 1924, when an executor was duly appointed and qualified.

By its terms she bequeathed to Charles Albert Robinson, a grandnephew, P10,000; Gertrude Webber, a grandniece, P10,000; Frema Fischler, a niece, P5,000; and Yatti Fischler, another niece, P5,000. The residue of her estate, both real and personal, she bequeathed, share and share alike to her nieces, Anna Hartske and Clara Webber. November 2, 1926, the Philippine Trust Company, which was later appointed administrator of the estate, filed the "Final Accounts and Project of Partition"

which, based on the inventory, consisted of real property, money and personal effects of the value of P77,021.71. November 12, 1926, the court purported to make an order approving said "Final Accounts and Project of Partition," but before it was carried out, and on November 23, 1926, Fred Frankel, claiming to be an heir of his deceased brother, Herman Frankel, husband of the deceased wife, filed a petition to set aside the order approving the "Final Accounts and Project of Partition,"

claiming that he was entitled to the conjugal half of the estate of the deceased wife. December 7, 1926, it was agreed between the attorneys "that the hearing be continued to a new setting to be fixed by this Honorable Court, in order to give the petitioner time to take depositions in the United States in support of his petition." November 17, 1927, the following written stipulation was made to take the deposition of Fred Frankel in the City of New York: STIPULATION FOR COMMISSION TO TAKE DEPOSITION OUT OF THE PHILIPPINE ISLANDS.

Upon the affidavit of Chas. E. Tenney, attorney for Fred Frankel, petitioner in the above-entitled proceedings, dated March 22, 1927, which is hereto attached, and upon the record of the above-entitled proceedings, it is stipulated and agreed that an order be entered herein, that a commission issue out of and under the seal of the said Court to take the deposition of the said Fred Frankel, petitioner, in the City of New York, State of New York, the said commission to be directed to Rubin Wexler, 63 Park Row, Room 727, Borough of Manhattan New York City, or to any Justice of the Peace in the City of New York, State of New York; that the said deposition to be taken on the interrogatories and cross-interrogatories attached hereto; and that Mr. J. W. Bernstein, 63 Park Row, New York, in representation of Fred Frankel, and Geo, Ryall--225 Fifth Avenue, New York, in representation of Clara Webber and Anna Hartske, be given not less than three days notice of the time and place of taking said deposition, and be permitted to attend at the taking thereof, and that Alex J. Lupear, attorney-at-law, 1103 Fletcher Savings and Trust Bldg., Indianapolis, Ind., be given at least 10 days notice of the time and place of said deposition, and that he, or anyone designated or nominated by him, be permitted to appear at the taking of said deposition, for and on behalf of Frema Fischler and Yatti Fischler.

March 21, 1928, the deposition of Fred Frankel was filed in the Court of First Instance of Manila, and by order of the court, the clerk was authorized to receive the evidence of the respective parties, and the case was set for hearing before the clerk on April 24, 1928, at which time the respective parties appeared, and the deposition of Fred Frankel was offered in evidence, to which objections were made by the residuary heirs of the deceased wife on the ground "that it is not a true transcript of the proceedings to which it pretends to relate." That it "is not in due form and does not comply with the law in relation to taking depositions abroad," and "on the ground that the deposition and the exhibits thereunto attached are not properly identified in accordance with the law in such cases made and provided,"

and "on the ground that nothing, including said Exhibit K, has been shown that would in any way even tend to give the person alleged to be Fred Frankel any standing in this record." November 8, 1928, the court made the following order: With regard to the objection of Mr. Wolfson to the admission of the deposition of Fred Frankel, it appears that the parties, among whom was Mr. Wolfson, have agreed to the taking of the deposition and that the set of questions to be asked was prepared and made a part of the agreement. It appears also that the deposition was taken in the presence of the representatives of the parties concerned, and that said deposition appears to be sworn to and subscribed by the deponent before the commissioner appointed by the consent of all the interested parties.

In view of the above, the court finds that the objection of Mr. Wolfson is not well founded; the same is, therefore, overruled. And upon the merits the court rendered the following decision: With regard to the first question, Fred Frankel stated that he is the son of Srul Frankel and Chaje Frankel, both of whom are now dead, and that he had four brothers and one sister, all of whom are also now deceased. According to the records, Mr. and Mrs. Herman Frankel had no issue.

It appearing from the above that Herman left no ascendants or descendants and it appearing that Fred Frankel is the only surviving brother, the latter must be declared the sole heir of Herman Frankel. It is contended that Herman Frankel, as husband, has an interest in the property left by his wife. It should be observed that upon the death of Herman Frankel, who was the first to die, no liquidation of the conjugal partnership was made; neither was any liquidation made at any time subsequent to the death of Mrs. R. H. Frankel.

It is safe to conclude, therefore, that the community property, if any, has been left undivided all this time. It is an admitted fact that Herman Frankel and Mrs. R. H. Frankel were legally married, although the evidence is contradictory as to the place where the marriage took place. As no proof has been introduced to the contrary, it is presumed that they have entered upon the regime of legal conjugal partnership.

Through the testimony of witnesses, it was endeavored to show that each of the couple had possessed certain properties belonging exclusively to each before the celebration of the marriage. Mrs. Anna Hartske declared that she is a niece of the testatrix, and that she had lived with her during her childhood. She declared that her aunt had already been engaged in the wig manufacturing business in Austria even before her marriage to Herman and later in Chicago, U. S. A., and that the testatrix had in 1904, when she (the witness) came to Manila, between P17,000 and P18,000 which amount, according to the witness, was derived from the business in question.

She also stated that Herman Frankel, as far as she knew, had no property, so much so that he oftentimes asked his wife to give him money, and that he was even supported by the witness and her aunt.

Asked if she knew if Herman had even been engaged in any business, she replied that to her knowledge he had never been. She also stated that Herman became insane. The records show that he had been confined in the San Lazaro Hospital, in Manila, between May 19, 1920 and September 9, 1923, when he died.

On the other hand, Fred Frankel in his deposition, declared that his brother Herman was engaged in the amusement business, having been proprietor of a circus. He stated that Herman sold a patent on some amusement machinery for P18,000 and that the latter showed him a traveling check book for that amount. He also stated that Mrs. R. H. Frankel had no property, although he admitted that the latter once asked him to take charge of certain real property.

There is nothing in the depositions tending to reveal what become of the P18,000. The deponent stated that he did not hear further from his brother until 1923, when he met Herman's wife, who told him that Herman Frankel had become insane, and that he was confined in a sanitorium in New York. The parties have agreed, however, that on August 30, 1916, Torrens title No. 3374, registry of Manila, was issued to Eugene Fischler, the wife of Herman Frankel; also another title was issued on June 20, 1921, in favor of Eugene Fischler, married to Herman Frankel.

Also they have agreed that the money now deposited in the International Banking Corporation was deposited on the 4th of January, 1922, by Eugene Fischler Frankel, and that the same amount was withdrawn by her one year thereafter and redeposited in the same bank under her name, and has remained there since. According to the inventory submitted by the administrator the properties of the deceased are the following: Real Estate .............................................. P48,827.00 Cash .....................................................

20,292.81 Promissory Note of J. R. Serra .................. 600.00 Jewelry .................................................. 6,560.50 Furniture ................................................

741.40