Laborde v. Laborde. close adherents of the Spanish government, and it appears that the mover here, Rufino Ubarri, was a Spanish volunteer who took part in defending the country against the American troops in the late war, and that immediately after the war most of the family moved to Spain. Of course we do not know what the truth of all these allegations as to the fraudulent conduct of this father and his sons may be, and we make the statement only to show the sort of allegations that have been, and are continuing to be, made in complaints and bills before this court at the present time, and for the purpose of showing some of the ulterior facts, and large amount involved in this bitter contest, for that is what it has developed into. The question for determination is: On the facts and the law here to be stated, is Rufino Ubarri a Porto Rican or a Spanish subject? If he is a Porto Rican, as he claims to be, we have no jurisdiction in either of these cases; if he is a Spaniard, as the other side allege him to be, then his motion must be overruled and he be required to further plead, answer, or demur. The suit at law was filed June 6, 1906; the defendant Rufino Ubarri thereafter, on June 16th, stipulated with the other side for additional time in which to plead. On June 30th he demurred, on the ground that the action was prescribed under several different local statutes which he cited. On September 17th he again stipulated, extending the time within which to answer. Again, on November 3d, he stipulated, extending the time to plead, and repeated it on November 30th, and then on December 27th he filed this motion to dismiss, alleging for the first time his Porto Rican status or citizenship. About the same course of stipulating for time, etc., took place, so far as he is concerned, in the equity suit, the bill in which was filed August 29, 1906. During the time of this dilatory action, the Laborde v. Laborde. effect of the ruling in the Vallecillo y Mandry v. Bertran Case, ante, p. 46, became known, and was taken advantage of by others in these same suits. In his motion he alleges that he was born in the island of Porto Rico in 1861, and now resides here, and that he has always lived here, with the exception of the time he went to Spain to be educated and divers visits he made to that country since; that desiring and intending to be and remain a citizen of Porto Rico after the American occupation, and after the signing of the treaty of peace between Spain and the United States of America, he refrained from making, before a court of record or before any other tribunal or consulate within a year from the date of the exchange of ratifications of the treaty of peace, as provided therein, a declaration of his intention to preserve his allegiance to the Crown of Spain. And that in default of such action he has renounced his allegiance and adopted the nationality of the territory of Porto Rico in which he resides, and became, and is, under the said treaty and the laws of the United States, a citizen of Porto Rico. To all of which he makes oath. He was required to support this motion by other proof, and on January 4th of the present year, counsel for both sides in both suits being present in open court, a full hearing on the matter was had. A considerable amount of oral évidence was taken in the premises, all of which was afterwards written out by the stenographer and has been carefully reread before proceeding with the writing of this opinion. : Before stating or discussing the acts and doings of this defendant, which it is claimed make him, or rather keep him, a Spanish subject, we will proceed to consider the law on the subject The treaty of Paris was signed on December 10, 1898; the Laborde v. Laborde. ratifications thereof were exchanged at Washington on April. 11, 1899. Article 9 of the treaty is applicable, and, among other things, provides that: "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain, by the present treaty, relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining, in either event, all their rights of property, including the right to sell or dispose of such property or of its proceeds; In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside." [30 Stat. at L. 1759.] Section 7 of the organic act (the Foraker act, establishing civil government in Porto Rico, approved April 12, 1900, 31. Stat. at L. 77, chap. 191) provides: "That all inhabitants continuing to reside therein [in Porto Rico] who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain on or before the eleventh day of April, nineteen hundred, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the eleventh day of April, eighteen hundred and ninety-nine." Counsel for the mover strenuously contends that, in view of Laborde v. Laborde. the provisions of the treaty thus set out, he cannot understand how an argument can be made in opposition to the motion; that, according to the treaty, the right of preserving Spanish citizenship or nationality was given only to "Spanish subjects natives of the Peninsula ;" that Rufino Ubarri is not a "native of the Peninsula," and was more than twenty-one years of age on April 11, 1899, and that therefore he could not have elected to preserve his Spanish nationality in accordance with the above quoted portion of art. 9 of the treaty, even though he had desired so to do. He further contends that, under the language of the organic act aforesaid, the mover, Rufino Ubarri, was an inhabitant of Porto Rico and continued to reside therein, and is still a resident thereof. There probably could not be much dispute as to this contention, were it not for the fact that Rufino Ubarri was not in Porto Rico on the day of the ratification of the treaty. It developed at the hearing that on March 8, 1899, about three months after the signing of the treaty and one month and three days before the ratification of it, this defendant took his family and went to Spain, remaining there about six months, and returning to Porto Rico in the fall (October 22d) of that year, and again going back with his family to Spain on June 18th of the following year, a. D. 1900, remaining there this second time something like two years. He left his furniture stored at his father-in-law's here at the time, and took only a small amount of expense money with him, having more remitted to him from time to time. He purchased no return tickets on either trip, although the evidence shows he might have saved 25 per cent of his passage money on the two and a half tickets he had to buy in each instance for himself, his wife and two children, and such tickets would have been good for a year and could Laborde v. Laborde. have been extended for a longer period. This point, coupled with his high connections and natural Spanish tendencies, is made much of by counsel for complainants as showing his intention to cast his lot with Spain after the war. Respondent himself testified in his own behalf at the hearing. The court saw him and heard him testify, and at times took him in hand with a view to getting some information from him. He appears to be a sort of nervous, somewhat hypochondriacal individual, of a not very complacent or high order of intellect. In fact, his counsel during the examination, with reference to him, stated: "The witness is not very bright, although I am not willing to say that he is not entitled to all credibility as a witness." He testified, among other things, that he was a member of the guerrillas, meaning, as it is claimed, that he had been a member of the Spanish volunteer forces here in the island of Porto Rico who fought against the American troops. He further testified that when he took this trip to Spain, some three months after the signing of the treaty of peace, he went purely on a pleasure trip, and incidentally for the benefit of the health of one of his children. The delicate health of this child was fully shown by the evidence of a physician on the hearing. And that, inasmuch as he has property interests here in Porto Rico, and none elsewhere, he could not reside in Spain all the time if he wanted to. When first asked what his intention since the war between the United States and Spain has been with respect to his own citizenship, he answered: "That I cannot tell you; that I reserve to myself; that I will keep to myself." He testified further that he had a poor memory and therefore he had forgotten to tell about coming back from Spain a few months after he went there the first time, which fact was only brought out by the evidence of other |