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, 1054, 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 Espana Extension; in  said City (Exhibits  2).  While transfering 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,  Conception 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).  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 aforemention, 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  Espaiia 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).

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 Espana 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 artiado  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] which  is  particularly strong when the domicile is one of the origin ^[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 'V 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, Has Honor, the trial Judge  sustained appellee's objection thereto stating:

"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 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. 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 there-in "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.).  There upon, 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 ta appellee's petition,  but, also, that venue had  been laid improperly.   Such  facts  were:  (a) their  alleged  relationship with the  decedent,^[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 there of 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,  en which date the case was docketed  as Special Proceedings  No. 957.  On December 14, 1953,  Jesus, Eugenio, Amando anil 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  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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^[1] "There is a presumption  in  favour  of the continuance of  an existing domicile.   Therefore,  the burden of proving a  change lies in all cases upon those who  alleged that  he change has occurred. This presumption may have  a decisive  effect,  for if the evidence is so conflicting that it is impossible to elicit with certainty what the resident's intention is,  the  Court,  being  unable  to reach  a satisfactory  conclusion one way or the other, will decide in favour of the existing domicile."  (Private International Law by Cheshire, pp. 218-219.)

"In the absence of  any circumstances  from  which  the courts may infer  the animus, they  are accustomed to fall back on  two legal presumptions, without which it would in  some cases  be impossible to  arrive at any conclusions as to  a  party's  domicile. "The first of these is the presumption that the party has retained the last domicile known to have  been possessed by him.  This  follows from the principle that  a domicile once acquired  is retained until another is gained1, and from the other principle growing out of it that the burden  of proof is on him who  alleges a change of domicile." (Conflict of Laws  by  Minor, p. 123.)

^[2] It  is often said,  particularly in the English cases, that there is a stronger presumption against change from  a domicile' of origin than there is against other changes of domicile.  'Domicile of origin  . . . differs from domicile of choice mainly in this that is character is more enduring, its hold stronger, and less easily  shaken off.'  The  English view was forcibly expressed in a Pennsylvania case in which Lewis, J., said:  'The attachment which every one feels  for  his  native land is the foundation of the rule that the domicile of origin is presumed to continue until  it  is  actually changed by acquiring a domicile elsewhere. No temporary sojourn in a foreign  country will work this change.'In  a federal case in Pennsylvania the same  point  was emphasized." (The Conflict of  Laws, by Beale, Vol. I,  p. 129.)

^[3] Which  has  not been categorically denied, appellee's counsel having limited themselves to alleging, in an unsworn pleading, that they have no knowledge sufficient to form a belief on  said claim of the appellants.