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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-3087 and L-3088
July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY.
SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant. Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of
Bulacan disallowing the alleged will and testament executed in
Manila on November 1929, and the alleged last will and testament
executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose
B. Suntay. The value of the estate left by the deceased is more
than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of
the Philippines, died in the city of Amoy, Fookien province,
Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and
children by the first marriage had with the late Manuela T. Cruz
namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the
second marriage had with Maria Natividad Lim Billian who
survived him. Intestate proceedings were instituted in the Court of
First Instance of Bulacan (special proceedings No. 4892) and
after hearing letters of administration were issued to Apolonio
Suntay. After the latter's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the surviving
widow filed a petition in the Court of First Instance of Bulacan for
the probate of a last will and testament claimed to have been
executed and signed in the Philippines on November 1929 by the
late Jose B. Suntay. This petition was denied because of the loss
of said will after the filing of the petition and before the hearing
thereof and of the insufficiency of the evidence to establish the
loss of the said will. An appeal was taken from said order denying
the probate of the will and this Court held the evidence before the
probate court sufficient to prove the loss of the will and remanded
the case to the Court of First Instance of Bulacan for the further
proceedings (63 Phil., 793). In spite of the fact that a commission
from the probate court was issued on 24 April 1937 for the taking
of the deposition of Go Toh, an attesting witness to the will, on 7
February 1938 the probate court denied a motion for continuance
of the hearing sent by cablegram from China by the surviving
widow and dismissed the petition. In the meantime the Pacific
War supervened. After liberation, claiming that he had found
among the files, records and documents of his late father a will
and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed,
recorded and probated in the Amoy district court, Province of
Fookien, China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed in the
Philippines on November 1929 (Exhibit B) or of the will executed
in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino
Suntay and his mother Maria Natividad Lim Billian are estopped
from asking for the probate of the lost will or of the foreign will
because of the transfer or assignment of their share right, title and
interest in the estate of the late Jose B. Suntay to Jose G.
Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo
and the subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C. Suntay, for the
validity and legality of such assignments cannot be threshed out
in this proceedings which is concerned only with the probate of
the will and testament executed in the Philippines on November
1929 or of the foreign will allegedly executed in Amoy on 4
January 1931 and claimed to have been probated in the municipal
district court of Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the

will on 7 February 1938 was no bar to the filing of this petition on
18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the
execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least
two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are
Go Toh, an attesting witness, Anastacio Teodoro and Ana
Suntay. Manuel Lopez, who was an attesting witness to the lost
will, was dead at the time of the hearing of this alternative petition.
In his deposition Go Toh testifies that he was one of the
witnesses to the lost will consisting of twenty-three sheets signed
by Jose B. Suntay at the bottom of the will and each and every
page thereof in the presence of Alberto Barretto, Manuel Lopez
and himself and underneath the testator's signature the attesting
witnesses signed and each of them signed the attestation clause
and each and every page of the will in the presence of the testator
and of the other witnesses (answers to the 31st, 41st, 42nd, 49th,
50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take
part in the drafting thereof (answer to the 11th interrogatory, Id.);
that he knew the contents of the will written in Spanish although
he knew very little of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and all he
knows about the contends of the lost will was revealed to him by
Jose B. Suntay at the time it was executed (answers to the 25th
interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that
Jose B. Suntay told him that the contents thereof are the same as
those of the draft (Exhibit B) (answers to the 33rd interrogatory
and to X-8 cross-interrogatory, Id.) which he saw in the office of
Alberto Barretto in November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and said to Jose B. Suntay:
"You had better see if you want any correction" (answers to the
81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose
B. Suntay put the "Exhibit B" in his pocket and had the original
signed and executed" (answers to the 91st interrogatory, and to
X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the
will (Exhibit B) translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did not read the
will and did not compare it (check it up) with the draft (Exhibit B)
(answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the
house of her brother Apolonio Suntay she learned that her father
left a will "because of the arrival of my brother Manuel Suntay,
who was bringing along with him certain document and he told us
or he was telling us that it was the will of our father Jose B.
Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing
of 24 February 1948); that she saw her brother Apolonio Suntay
read the document in her presence and of Manuel and learned of
the adjudication made in the will by her father of his estate, to wit:
one-third to his children, one-third to Silvino and his mother and
the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp.
526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that
portion, then he turned over the document to Manuel, and he
went away," (p. 528, t. s. n., Id.). On cross-examination, she
testifies that she read the part of the will on adjudication to know
what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on
redirect she testifies that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p.
273, t. s. n., hearing of 19 January 1948), before the last
postponement of the hearing granted by the Court, Go Toh

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arrived at his law office in the De los Reyes Building and left an
envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n.,
hearing of 13 October 1947); that he checked up the signatures
on the envelope Exhibit A with those on the will placed in the
envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to
Anastacio Teodoro And returned by the latter to the former
because they could not agree on the amount of fees, the former
coming to the latter's office straight from the boat (p. 315, t. s. n.,
hearing of 19 January 1948) that brought him to the Philippines
from Amoy, and that delivery took place in November 1934 (p.
273, t. s. n., Id.), then the testimony of Ana Suntay that she saw
and heard her brother Apolonio Suntay read the will sometime in
September 1934 (p. 524, t. s. n., hearing of 24 February 1948),
must not be true.
Although Ana Suntay would be a good witness because she was
testifying against her own interest, still the fact remains that she
did not read the whole will but only the adjudication (pp. 526-8,
530-1, 542, t. s. n., Id.) and saw only the signature, of her father
and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto
(p. 546, t. s. n., Id.). But her testimony on cross-examination that
she read the part of the will on adjudication is inconsistent with
her testimony in chief that after Apolonio had read that part of the
will he turned over or handed the document to Manuel who went
away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of
Alberto Barretto in November 1929 when the will was signed, then
the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want
any correction" and that "after checking Jose B. Suntay put the
"Exhibit B" in his pocket and had the original signed and
executed" cannot be true, for it was not the time for correcting the
draft of the will, because it must have been corrected before and
all corrections and additions written in lead pencil must have been
inserted and copied in the final draft of the will which was signed
on that occasion. The bringing in for the draft (Exhibit B) on that
occasion is just to fit it within the framework of the appellant's
theory. At any rate, all of Go Toh's testimony by deposition on the
provisions of the alleged lost will is hearsay, because he came to
know or he learned to them from information given him by Jose B.
Suntay and from reading the translation of the draft (Exhibit B)
into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who
testifies that he read the supposed will or the alleged will of his
father and that the share of the surviving widow, according to the
will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24
October 1947). But this witness testified to oppose the
appointment of a co-administrator of the estate, for the reason
that he had acquired the interest of the surviving widow not only in
the estate of her deceased husband but also in the conjugal
property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he
read the original will or just the copy thereof (Exhibit B) is not
clear. For him the important point was that he had acquired all the
share, participation and interest of the surviving widow and of the
only child by the second marriage in the estate of his deceased
father. Be that as it may, his testimony that under the will the
surviving widow would take two-thirds of the estate of the late
Jose B. Suntay is at variance with Exhibit B and the testimony of
Anastacio Teodoro. According to the latter, the third for strict
legitime is for the ten children; the third for betterment is for
Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B.
Suntay placed in the envelope (Exhibit A) and that it was in
existence at the time of, and not revoked before, his death, still
the testimony of Anastacio Teodoro alone falls short of the legal
requirement that the provisions of the lost will must be "clearly
and distinctly proved by at least two credible witnesses." Credible
witnesses mean competent witnesses and those who testify to

facts from or upon hearsay are neither competent nor credible

witnesses.
On the other hand, Alberto Barretto testifies that in the early part
of 1929 he prepared or drew up two mills for Jose B. Suntay at
the latter's request, the rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final draft or typing
and returned to him; that after checking up the final with the rough
draft he tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow (pp. 392-4,
449, t. s. n., hearing of 21 February 1948); that two months later
Jose B. Suntay and Manuel Lopez called on him and the former
asked him to draw up another will favoring more his wife and child
Silvino; that he had the rough draft of the second will typed (pp.
395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n.,
Id.); that he did not sign as witness the second will of Jose B.
Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s.
n., Id.); that the handwritten insertions or additions in lead pencil
to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the
final draft of the first will made up of four or five pages (p. 400, t.
s. n., Id.) was signed and executed, two or three months after
Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n.,
Id.) in his office at the Cebu Portland Cement in the China
Banking Building on Dasmarias street by Jose B. Suntay,
Manuel Lopez and a Chinaman who had all come from Hagonoy
(p. 398, t. s. n., Id.); that on that occasion they brought an
envelope (Exhibit A) where the following words were written:
"Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that
after the signing of the will it was placed inside the envelope
(Exhibit A) together with an inventory of the properties of Jose B.
Suntay and the envelope was sealed by the signatures of the
testator and the attesting witnesses (pp. 398, 401, 441, 443, 461,
t. s. n., Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934, brought by
Go Toh and it was then in perfect condition (pp. 405-6, 411, 4402, t. s. n., Id.); that on the following Monday Go Toh went to his
law office bringing along with him the envelope (Exhibit A) in the
same condition; that he told Go Toh that he would charge
P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go
Toh did not leave the envelope (Exhibit A) either in his house or in
his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to
keep it and on no occasion did Go Toh leave it to him (pp. 409,
410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F.
B. Albert in connection with the complaint for estafa filed against
Manuel Suntay for the alleged snatching of the envelope (Exhibit
A), corroborates the testimony of Alberto Barretto to the effect that
only one will was signed by Jose B. Suntay at his office in which
he (Alberto Barretto), Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified
before the same assistant fiscal that he did not leave the will in
the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said,
quoting his own words, "Because I can not give him this envelope
even though the contract (on fees) was signed. I have to bring
that document to court or to anywhere else myself." (p. 27, t. s. n.,
Exhibit 6).
As to the will claimed to have been executed on 4 January 1931
in Amoy, China, the law on the point in Rule 78. Section 1 of the
rule provides:
Wills proved and allowed in a foreign country, according to the
laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the

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Philippines, the court shall so allow it, and a certificate of its
allowance, signed by the Judge, and attested by the seal of the
courts, to which shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have the same effect
as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a
probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no
proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of
the Republic of China set forth in Exhibits R-1 and R-2, objected
to by counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not qualify
and make the person who holds it an expert on the Chinese law
on procedure in probate matters, if the same be admitted, the
adverse party would be deprived of his right to confront and
cross-examine the witness. Consuls are appointed to attend to
trade matters. Moreover, it appears that all the proceedings had in
the municipal district court of Amoy were for the purpose of taking
the testimony of two attesting witnesses to the will and that the
order of the municipal district court of Amoy does not purport to
probate the will. In the absence of proof that the municipal district
court of Amoy is a probate court and on the Chinese law of
procedure in probate matters, it may be presumed that the
proceedings in the matter of probating or allowing a will in the
Chinese courts are the a deposition or to a perpetuation of
testimony, and even if it were so it does not measure same as
those provided for in our laws on the subject. It is a proceedings
in rem and for the validity of such proceedings personal notice or
by publication or both to all interested parties must be made. The
interested parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was
received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The
proceedings had in the municipal district court of Amoy, China,
may be likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such
interested parties.
The order of the municipal district court of Amoy, China, which
reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the
interrogated parties, who declare that there are no errors, after
said minutes were loudly read and announced actually in the
court.
Done and subscribed on the Nineteenth day of the English month
of the 35th year of the Republic of China in the Civil Section of the
Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the subject
of the proceedings. In view thereof, the will and the alleged
probate thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and principles
followed in the probate and allowance of wills. Consequently, the
authenticated transcript of proceedings held in the municipal
district court of Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a will and,
therefore, the will referred to therein cannot be allowed, filed and
recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as
to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ.,

concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria
Natividad Lim Billian, petitioner and appellant, vs. Apolonio
Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay,
oppositors and appellees, 63 Phil., 793-797, in which the following
decision was rendered by this Court on November 25, 1936,
holding that the will executed by Jose B. Suntay who died in the
City of Amoy, China, on May 14, 1934, was lost under the
circumstances pointed out therein, and ordering the return of the
case to the Court of First Instance of Bulacan for further
proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China.
He married twice, the first time to Manuela T. Cruz with whom he
had several children now residing in the Philippines, and the
second time to Maria Natividad Lim Billian with whom he had a
son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of
the deceased by his first marriage, filed the latter's intestate in the
Court of First Instance of Manila (civil case No. 4892).
On October 15, 1934, and in the same court, Maria Natividad Lim
Billian also instituted the present proceedings for the probate of a
will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he
left with her a sealed envelope (Exhibit A) containing his will and,
also another document (Exhibit B of the petitioner) said to be a
true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh,
Alberto Barretto and Manuel Lopez as attesting witnesses. On
August 25, 1934, Go Toh, as attorney-in-fact of the petitioner,
arrived in the Philippines with the will in the envelope and its copy
Exhibit B. While Go Toh was showing this envelope to Apolonio
Suntay and Angel Suntay, children by first marriage of the
deceased, they snatched and opened it and, after getting its
contents and throwing away the envelope, they fled.
Upon this allegation, the petitioner asks in this case that the
brothers Apolonio, Angel, Manuel and Jose Suntay, children by
the first marriage of the deceased, who allegedly have the
document contained in the envelope which is the will of the
deceased, be ordered to present it in court, that a day be set for
the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the
deceased in the will.
In answer to the court's order to present the alleged will, the
brothers Apolonio, Angel, Manuel and Jose Suntay stated that
they did not have the said will and denied having snatched it from
Go Toh.
In view of the allegations of the petition and the answer of the
brothers Apolonio, Angel, Manuel and Jose Suntay, the questions
raised herein are: The loss of the alleged will of the deceased,
whether Exhibit B accompanying the petition is an authentic copy
thereof, and whether it has been executed with all the essential
and necessary formalities required by law for its probate.
At the trial of the case on March 26, 1934, the petitioner put two
witnesses upon the stand, Go Toh and Tan Boon Chong, who
corroborated the allegation that the brothers Apolonio and Angel
appropriated the envelope in the circumstances abovementioned. The oppositors have not adduced any evidence
counter to the testimony of these two witnesses. The court, while
making no express finding on this fact, took it for granted in its
decision; but it dismissed the petition believing that the evidence
is insufficient to establish that the envelope seized from Go Toh
contained the will of the deceased, and that the said will was
executed with all the essential and necessary formalities required
by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of
the document contained in the envelope. Oppositors' answer
admits that, according to Barretto, he prepared a will of the

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deceased to which he later become a witness together with Go
Toh and Manuel Lopez, and that this will was placed in an
envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and
attached to the case an open and empty envelope signed by Jose
B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus
undeniable that this envelope Exhibit A is the same one that
contained the will executed by the deceased-drafted by Barretto
and with the latter, Go Toh and Manuel Lopez as attesting
witnesses. These tokens sufficiently point to the loss of the will of
the deceased, a circumstance justifying the presentation of
secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether
the latter was executed with all the formalities required by law for
its probate. The testimony of Alberto Barretto bears importantly in
this connection.
Wherefore, the loss of the will executed by the deceased having
been sufficiently established, it is ordered that this case be
remanded to the court of origin for further proceedings in
obedience to this decision, without any pronouncement as to the
costs. So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a
petition in the Court of First Instance of Bulacan praying "that an
order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by
virtue of its decision in G. R. No. 44276 and fixing a date for the
reception of evidence of the contents of the will declared lost, or
the allowance, filing and recording of the will of the deceased
which had been duly probated in China, upon the presentation of
the certificates and authentications required by Section 41, Rule
123 (Yu Chengco vs. Tiaoqui supra), or both proceedings
concurrently and simultaneously; (b) that letters of administration
be issued to herein petitioner as co-administrator of the estate of
the deceased together with Federico Suntay; and (c) that such
other necessary and proper orders be issued which this
Honorable Court deems appropriate in the premises." While this
petition was opposed by Federico C. Suntay, son of the deceased
Jose B. Suntay with his first wife, Manuela T. Cruz, the other
children of the first marriage, namely, Ana Suntay, Aurora Suntay,
Concepcion Suntay, Lourdes Guevara Vda. de Suntay, Manuel
Suntay and Emiliano Suntay, filed the following answer stating
that they had no opposition thereto; "Come now the heirs
Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay,
through their undersigned attorney, and, in answer to the
alternative petition filed in these proceedings by Silvino Suntay,
through counsel, dated June 18, 1947, to this Honorable Court
respectfully state that, since said alternative petition seeks only to
put into effect the testamentary disposition and wishes of their late
father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on
April 19, 1948, the following decision:
This action is for the legalization of the alleged will of Jose B.
Suntay, deceased.
In order to have a comprehensive understanding of this case, it is
necessary to state the background on which the alternative
petition of the herein petitioner Silvino Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re will of the
deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder
produced:
(As quoted above)
The above quoted decision of the Supreme Court was
promulgated on November 25, 1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan
notified the parties of the decision on December 15, 1936; and the

case was set for hearing on February 12, 1937, but it was
transferred to March 29, 1937 (Exhibit O), on motion of the then
petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was
postponed until "further setting" in the order of court dated March
18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought
(Exhibit H).
The hearing of the case was again set for February 7, 1936, by
order of the court dated January 5, 1938, upon motion of Emiliano
Suntay and Jose Suntay, Jr. On the same day of the hearing
which had been set, the petitioner, then, Maria Natividad Lim
Billian, sent a telegram from Amoy, China, addressed to the Court
of First Instance of Bulacan moving for the postponement of the
hearing on the ground that Atty. Eriberto de Silva who was
representing her died (Exhibit K). The court, instead of granting
the telegraphic motion for postponement, dismissed the case in
the order dated February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for
the consolidation of the intestate Estate of the deceased Jose B.
Suntay, Special Proceeding No. 4892 and the Testate Estate of
Jose B. Suntay, Special Proceeding No. 4952, which latter case is
the subject of the said alternative petition. The motion for the
merger and consolidation of the two cases was granted on July 3,
1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding
filed a motion to dismiss the alternative petition on November 14,
1947, which was denied by the court in its resolution of November
22, 1947. The said oppositor not being satisfied with the ruling of
this court denying the motion to dismiss, filed before the Supreme
Court a petition for a writ of certiorari with preliminary injunction,
which was dismissed for lack of merit on January 27, 1948.
In obedience to the decision of the Supreme Court (Exhibit O) and
upon the alternative petition of Silvino Suntay, and, further, upon
the dismissal of the petition for a writ of certiorari with preliminary
injunction, the court was constrained to proceed with the hearing
of the probate of the lost will, the draft of which is Exhibit B, or the
admission and recording of the will which had been probated in
Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose
B. Suntay married twice; first to Manuela T. Cruz who died on
June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora,
Emiliano and Jose, Jr., all surnamed Suntay, and second, to
Maria Natividad Lim Billian with whom he had as the only child
Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last
will and testament in the office of Atty. Alberto Barretto in Manila,
which was witnessed by Alberto Barretto, Manuel Lopez and Go
Toh. The will was prepared by said Alberto Barretto upon the
instance of Jose B. Suntay, and it was written in the Spanish
language which was understood and spoken by said testator.
After the due execution of the will, that is signing every page and
the attestation clause by the testator and the witnesses in the
presence of each other, the will was placed inside the envelope
(Exhibit A), sealed and on the said envelope the testator and the
three subscribing witnesses also signed, after which it was
delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay
together with his second wife Maria Natividad Lim Billian and
Silvino Suntay who was then of tender age went to reside in
Amoy, Fookien, China, where he died on May 14, 1934. The will
was entrusted to the widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio
Suntay, the oldest son now deceased, instituted the Intestate
Proceedings No. 4892, upon the presumption that no will existed.
Maria Natividad Lim Billian who remained in Amoy, China, had
with her the will and she engaged the services of the law firm of
Barretto and Teodoro for the probate of the will. Upon the request
of the said attorneys the will was brought to the Philippines by Go
Toh who was one of the attesting witnesses, and it was taken to

5
the law office of Barretto and Teodoro. The law firm of Barretto
and Teodoro was composed of Atty. Alberto Barretto and Judge
Anastacio Teodoro. The probate of the will was entrusted to the
junior partner Judge Anastacio Teodoro; and, upon the
presentation of the sealed envelope to him, he opened it and
examined the said will preparatory to the filing of the petition for
probate. There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go Toh) could
not agree to pay, P20,000 as fees, the will was returned to Go
Toh by Judge Anastacio Teodoro after the latter had kept it in his
safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go
Toh by Manuel Suntay and Jose, Jr., which fact has been
established in the decision of the Supreme Court at the beginning
of this decision. Go Toh could recover the envelope (Exhibit A)
and the piece of cloth with which the envelope was wrapped
(Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the
lost will a draft of the will (Exhibit B) was presented as secondary
evidence for probate. It was disallowed by this court through
Judge Buenaventura Ocampo, but on appeal the Supreme Court
remanded the case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy
Fookien, China, on January 4, 1931, by Jose B. Suntay, written in
Chinese characters (Exhibit P) was discovered in Amoy, China,
among the papers left by Jose B. Suntay, and said will had been
allowed to probate in the Amoy District Court, China, which is
being also presented by Silvino Suntay for allowance and
recording in this court.
The said petition is opposed by Federico C. Suntay on the main
ground that Maria Natividad Lim Billian and Silvino Suntay have
no more interest in the properties left by Jose B. Suntay, because
they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment in
the instant case, because the proposition involved herein in the
legalization of the lost will or the allowance and recording of the
will which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence
whether or not Jose B. Suntay, deceased, left a will (the draft of
which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was
still residing in the Philippines, had executed a will; such is the
conclusion of the Supreme Court in its decision (Exhibit O). That
the will was snatched and it has never been produced in court by
those who snatched it, and consequently considered lost, is also
an established fact.
The contention of the oppositor, Federico C. Suntay, is that the
will that was executed by Jose B. Suntay in the Philippines
contained provisions which provided for equal distribution of the
properties among the heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because it does not provide
for equal distribution, but if favors Maria Natividad Lim Billian and
Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto
who declared that the first will which he drafted and reduced into
a plain copy was the will that was executed by Jose B. Suntay
and placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted
became the will of Jose B. Suntay and it was snatched by, and,
therefore, it had fallen into the hands of, Manuel Suntay and the
brothers of the first marriage, it stands to reason that said Manuel
Suntay and brothers would have been primarily interested in the
production of said will in court, for obvious reasons, namely, that
they would have been favored. But it was suppressed and
"evidence willfully suppressed would be adverse if produced"
(Section 69 (e), Rule 123 of the Rules of Court). The contention,
therefore, that the first will which was drafted by Atty. Barretto was
the one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit
B) has been admitted by Atty. Alberto Barretto as identical in

substance and form to the second draft which he prepared in

typewriting; it differs only, according to him, in style. He denied
that the insertions in long hand in the said draft are in his own
handwriting; however, Judge Anastacio Teodoro averred that the
said insertions are the handwriting of Atty. Alberto Barretto. But
when Atty. Alberto Barretto was asked to show any manuscript of
his for purposes of comparison, he declined to do so alleging that
he did not have any document in his possession showing his
handwriting notwithstanding the fact that he was testifying in his
own house at 188 Sta. Mesa Boulevard, Manila. He further
testified that the first will be drafted contained four or five pages,
but the second draft contained twenty-three pages; that he
declared in one breath that he did not read the will any more
when it was signed by the testator and the attesting witnesses
because it would take up much time, and in the same breath he
declared that he checked it before it was signed; and that he
destroyed the draft of the first will which was in his own
handwriting, but he delivered the draft of the second will which he
prepared to Jose B. Suntay in the presence of Manuel Lopez,
now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit
B) was executed by the testator, Jose B. Suntay, and attested by
the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez
and Go Toh, is the pivotal point in this instant case. Judge
Anastacio Teodoro testified that he opened the sealed envelope
when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the
lawyer entrusted with that task, he had to examine the will and
have it copied to be reproduced or appended to the petition. He
could not do otherwise if he is worth salt as a good lawyer; he
could not perform the stunt of "blind flying" in the judicial
firmament. Every step must be taken with certainty and precision
under any circumstances. He could not have talked about the
attorney's fees with Go Toh, unless he has not examined the will
beforehand. And, declaring that it was the exact draft of the will
that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go
Toh, one of the attesting witnesses, in his deposition (Exhibit D1).
Ana Suntay, one of the heirs and who would be affected
adversely by the legalization of the will in question, also testified
on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and
she particularly remembers the manner in which the properties
were to be distributed. Exhibit B was shown to her on the witness
stand and she declared that the provision regarding the
distribution of the properties in said Exhibit B is the same as that
contained in the original will. Said testimony of Ana Suntay,
therefore, belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of
Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the
execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or it is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least
two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing
witnesses are dead or insane, or that none of them resides in the
Philippines the court may admit the testimony of other witnesses
to prove the sanity of the testator, and the due execution of the
will; and as evidence of the due execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or any of them."

6
Manuel Lopez as one of the subscribing witnesses is dead. Atty.
Alberto Barretto and Go Toh are still living. The former testified
during the hearing, while Go Toh's deposition was introduced in
evidence which was admitted. In the absence of the testimony of
Manuel Lopez, deceased, the testimony of Judge Anastacio
Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B,
was lost or destroyed; that it was executed and valid and that it
existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was
executed in Amoy, China.
The contents of the Chinese will is substantially the same as the
draft (Exhibit B). Granting that the will executed in the Philippines
is non-existent as contended by the oppositor, although the
findings of this court is otherwise, the will executed and probated
in China should be allowed and recorded in this court. All the
formalities of the law in China had been followed in its execution,
on account of which it was duly probated in the Amoy District
Court. There is no cogent reason, therefore, why it should not be
admitted and recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an
alternate in case the will executed in the Philippines would not be
allowed to probate, or as a corroborative evidence that the will,
the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved
outside of the Philippines and administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or
territory thereof, or in foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance."
This court has delved deep into the evidence adduced during the
hearing with that penetrating scrutiny in order to discovery the real
facts; it had used unsparingly the judicial scapel; and it has
winnowed the evidenced to separate the grain from the chaff. All
the facts lead to the inevitable conclusion that Jose B. Suntay, in
his sound and disposing mind and not acting under duress or
undue influence, executed the will which is lost, the draft of which
is Exhibit B, with all the necessary formalities prescribed by law.
He, likewise, executed the second will (Exhibit P) in Amoy, China,
which has been duly probated in Amoy District Court,-a
corroborative evidence that the testator really executed the will.
Copies of the said wills duly certified and under the seal of the
court are appended hereto, marked Exhibits B and P, and they
form part of this decision.
In view of the foregoing considerations, the court is of the opinion
and so declares that the draft of the will (Exhibit B) is, to all legal
intents and purposes, and testament of the deceased Jose B.
Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for
new trial and to set aside the decision rendered on April 19, 1948,
to which the petitioner filed an opposition, followed by a reply filed
by the oppositor and an answer on the part of the petitioner.
Without reopening the case and receiving any new or additional
evidence, the Court of First Instance of Bulacan, on September
29, 1948, promulgated the following resolution setting aside his
first decision and disallowing the wills sought to be probated by
the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision
legalizing the will of Jose B. Suntay and allowing and recording
another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the

evidence and the law applicable thereto with the view of

ascertaining whether or not the motion is well founded. Both
parties have presented extensive memoranda in support of their
respective contentions.
This court has gone over the evidence conscientiously, and it
reiterates its findings of the same facts in this resolution, whether
or not the facts established by the petitioner, Silvino Suntay,
warrant the legalization of the lost will and the allowance and
recording of the will that was executed in Amoy, China, is
therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. There is no question in
the mind of this court that the original will which Jose B. Suntay,
deceased executed in the Philippines in the year 1929 was lost
(Exhibit O, Decision of the Supreme Court). The evidence
adduced by the petitioner during the hearing has established
through the testimony of Judge Anastacio Teodoro and that of Go
Toh (an attesting witness) that the will was executed by Jose B.
Suntay, deceased, with all the formalities required by law. For the
purpose of legalizing an original and existing will, the evidence on
record is sufficient as to the execution and attesting in the manner
required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in
the Philippines. If it appears at the time fixed for the hearing
that the subscribing witnesses are dead or insane, or that none of
them resides in the Philippines, the court may admit the testimony
of other witnesses to prove the sanity of the testator, and the due
execution of the will; and as evidence of the execution of the will,
may admit proof of the handwriting of the testator and of the
subscribing witnesses, or any of them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or accounted for
where contest. If the will is contested, all the subscribing
witnesses present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of
any of them must be satisfactorily shown to the court. If all or
some of the subscribing witnesses are present in the Philippines,
but outside the province where the will has been filed, their
deposition must be taken. If all or some of the subscribing
witnesses produced and examined testify against the due
execution of the will, or do not remember having attested to it, or
are otherwise of doubtful credibility, the will may be allowed if the
court is satisfied from the testimony of other witnesses and from
all the evidence presented that the will was executed and attested
in the manner required by law."
The three attesting witnesses were Manuel Lopez, deceased
Alberto Barretto and Go Toh. The last two witnesses are still
living; the former testified against and the latter in favor. In other
words, the attesting witness, Go Toh, only, testified in his
deposition in favor of the due execution of the will. Hence, the
petitioner presented another witness, Judge Anastacio Teodoro,
to establish and prove the due execution of the said will. Ana
Suntay was also presented as a witness in rebuttal evidence. The
testimony of Go Toh in his deposition as an attesting witness,
coupled with the testimony of Judge Anastacio Teodoro who was
able to examine the original will that was executed by Jose B.
Suntay, deceased, when it was given to him by Go Toh for the
purpose of filing the petition in court for its legalization, and could
recognize the signatures of the testator as well as of the three
attesting witnesses on the said original will is sufficient to
convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law.
The original will, therefore, if it was presented in court to probate
would be allowed to all legal intents and purposes. But it was not
the original will that was presented, because it was lost, but an
alleged draft (Exhibit B) of the said original will which does not
bear the signature of the testator and any of the attesting witness.
The original will was duly executed with all the formalities required
by law, but it was unfortunately lost; and the curtain falls for the
next setting.

7
The Court is now confronted with the legalization of the lost will
whether or not the draft (Exhibit B) should be admitted as
secondary evidence in lieu of the lost will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon.
No will shall be proved as a lost will or destroyed will unless
the execution and validity of the same be established, and the will
is proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by at least
two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the Judge, under
the seal of the court and the certificate must be filed and recorded
as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the
petitioner should not only establish the execution and validity of
the will, its existence at the time of the death of the testator or its
fraudulent and accidental destruction in the lifetime of the testator
without his knowledge, but also must prove its provisions clearly
and distinctly by at least two credible witnesses. The exact
language of the clause in the above quoted provision of the law is
"nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses." The legalization of a lost will is not
so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a
very sharp focus; namely, the execution and validity must be
established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been
established through the testimony of Judge Anastacio Teodoro
and Go Toh, and perhaps superficially by the rebuttal witness,
Ana Suntay, does it follow that the provisions of the lost will have
been clearly and distinctly proved by at least two credible
witnesses? A careful review of the evidence has revealed that at
most the only credible witness who testified as to the provisions of
the will was Judge Anastacio Teodoro, and yet he testified on the
provisions of the lost will with the draft (Exhibit B) in his hands
while testifying. It may be granted, however, that with or without
the draft of the will (Exhibit B) in his hands, he could have testified
clearly and distinctly on the provisions of the said lost will,
because he had kept the will in his safe, in his office, for three
days, after opening it, and he is well versed in Spanish language
in which the will as written. But did the attesting witness Go Toh,
testify in his deposition and prove clearly and distinctly the
provisions of the lost will? He did not, and he could not have done
so even if he tried because the original will was not read to him
nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the
contents of the said will, after its execution and sealing inside the
envelope (Exhibit A), read to him because it was opened only
when Judge Teodoro had examined it and then subsequently
snatched from Go Toh. Ana Suntay on rebuttal did not, likewise,
prove clearly and distinctly the provisions of the said lost will
because she has not had enough schooling and she does
possess adequate knowledge of the Spanish language as shown
by the fact that she had to testify in Tagalog on the witness
standing.
It is evident, therefore, that although the petitioner has established
the execution and validity of the lost will, yet he had not proved
clearly and distinctly the provisions of the will by at least two
credible witnesses.
B. As to the Allowance and Recording of the will Executed in
Amoy, China. Jose B. Suntay, while he was residing in China
during the remaining years of his life, executed also a will, written
in Chinese characters, the translation of which is marked Exhibit
P. It was allowed to probate in the District Court of Amoy, China.
The question is whether or not the said will should be allowed and
recorded in this jurisdiction.

Section 1 of Rule 78 provides as follows:

"SEC. 1. Will proved outside Philippines any be allowed here.
Will proved and allowed in the United States, or any state or
territory thereof, or in a foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such
will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines by the executor or other
persons interested, in the Court having jurisdiction, such court
shall fix a time and place for the hearing, and cause notice thereof
to be given as in case of an original will presented for allowance."
Sections 41 and 42 of Rule 123 provides as follows:
"SEC. 41. Proof of Public or official record. An official record or
an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is within the United States or
its territory, the certificate may be made by a judge of a court of
record of the district or political subdivision in which the record is
kept, authenticated by the seal of the court, or may be made by
any public officer having a seal of the office and having official
duties in the district or political subdivision in which the record is
kept, authenticated by the seal of his office. If the office in which
the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the
foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal
of his office."
F. "SEC. 42. What attestation of copy must state. Whenever a
copy of writing is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our
Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will 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 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)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613,
our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed
in Elkins, West Virginia, on November 3, 1925, by Hix who had
his residence in that jurisdiction, and that the laws of West

8
Virginia govern. To this end, there was submitted a copy of
section 3868 of Acts 1882, c. 84 as found in West Virginia Code,
Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far
from compliance with the law. The laws of a foreign jurisdiction do
not prove themselves in our courts. The courts of the Philippine
Islands are not authorized to take judicial notice of the laws of the
various States of the American Union. Such laws must be proved
as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the
requirements of the law were not met. There was not showing that
the book from which an extract was taken was printed or
published under the authority of the State of West Virginia, as
provided in section 300 of the Code of Civil Procedure. Nor was
the extract from the law attested by the certificate of the officer
having charge of the original under the seal of the State of West
Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract
from the laws of West Virginia was in force at the time the alleged
will was executed.
"It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not in the Philippine Islands.
The only evidence introduced to establish this fact consisted of
the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the
attorney for the appellant presented an unverified petition asking
the court to accept as part of the evidence the documents
attached to the petition. One of these documents discloses that a
paper writing purporting to be the last will and testament of
Edward Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of West
Virginia, in vacation, and was duly proven by the oaths of Dana
Vansley and Joseph L. Madden, the subscribing witnesses
thereto, and ordered to be recorded and filed. It was shown by
another document that in vacation, on June 8, 1929, the clerk of
court of Randolph County, West Virginia, appointed Claude E.
Maxwell as administrator, cum testamento annexo, of the estate
of Edward Randolph Hix, deceased ... However this may be no
attempt has been made to comply with the provisions of sections
637, 638, and 639 of the Code of Civil Procedure, for no hearing
on the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in
Amoy, China, was validly done in accordance with the law of the
Republic of China on the matter, is it necessary to prove in this
jurisdiction the existence of such law in China as a prerequisite to
the allowance and recording of said will? The answer is in the
affirmative as enunciated in Fluemer vs. Hix, supra, and in Yanez
de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the
Supreme Court said:
"A foreign law may be proved by the certificate of the officer
having in charge of the original, under the seal of the state or
country. It may also be proved by an official copy of the same
published under the authority of the particular state and purporting
to contain such law. (Secs. 300 and 301, Act No. 190.),
(Syllabus.)
The provisions of section 300 and 301 of the Code of Civil
Procedure (Act No. 190) are as follows:
"SEC. 300. Printed laws of the State or Country. Books printed
or published under the authority of the United States, or one of
the States of the United States, or a foreign country, and
purporting to contain statutes, codes, or other written law of such
State or country or proved to be commonly admitted in the
tribunals of such State or country an evidence of the written law
thereof, are admissible in the Philippine Islands are evidence of
such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written
law or other public writing of any state or country, attested by the
certificate of the officer having charge of the original, under the
seal of the state or country, is admissible as evidence of such law
or writing."

The petitioner has presented in evidence the certification of the

Chinese Consul General, Tsutseng T. Shen, of the existence of
the law in China (Exhibit B-3), relative to the execution and
probate of the will executed by Jose B. Suntay in Amoy, China
(Exhibit P). Is that evidence admissible, in view of the provisions
of Sections 41 and 42 of the Rules of the Rules of Court. Is the
said certification of the Chinese Consul General in the Philippines
a substantial compliance with the provisions of the above
mentioned section 41 and 42 of our Rules of Court?
This court has its doubts as to the admissibility in evidence of the
Chinese Consul General in the Philippines of the existence of the
laws of Republic of China relative to the execution and probate of
a will executed in China. Such law may exist in China, but
"An official record or an entry therein, when admissible for any
purpose, may be evidence by an official publication thereof or by
a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the
custody. ... If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of embassy or
legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the United States stationed
in the foreign country in which the record is kept, and
authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and
it must be proved in this jurisdiction through the means prescribed
by our Rules of Court. It is, therefore, obvious that the Chinese
Counsel General in the Philippines who certified as to the
existence of such law is not the officer having the legal custody of
the record, nor is he a deputy of such officer. And, if the office in
which the record is kept is in a foreign country, the certificate may
be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the
foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal
of his office.
It is clear, therefore, that the above provisions of the Rules of
Court (Rule 123, sec. 41) not having been complied with, the
doubt of this court has been dissipated, and it is of the opinion
and so holds that the certification of the Chinese Consul General
alone is not admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay,
who was born in China, but resided in the Philippines for a long
time, has become a Filipino citizen by naturalization, or he
remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his
permanent domicile from the Philippines to Amoy, China. His
change of permanent domicile could only be inferred. But the
question of his permanent domicile pales into insignificance in
view of the overtowering fact that the law of China pertinent to the
allowance and recording of the said will in this jurisdiction has
been satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in
their respective memorandum and in the oral argument in behalf
of the oppositor the question of estoppel. The consideration of the
points raised by them would open the door to the appreciation of
the intrinsic validity of the provisions of the will which is not of
moment at the present stage of the proceeding. While the probate
of a will is conclusive as to the compliance with all formal
requisites necessary to the lawful execution of the will, such
probate does not affect the intrinsic validity of the provisions of the
will. With respect to the latter the will in governed by the
substantive law relative to descent and distribution. (In re
Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon reconsideration, the
previous decision rendered in this case allowing the will (Exhibit
B) and allowing and recording the foreign will (Exhibit P) is set
aside; and this court is of the opinion and so holds that the said
two wills should be, as they are hereby disallowed. Without
special pronouncement as to costs.

9
It is very significant that in the foregoing resolution, the Court of
First Instance of Bulacan "reiterates its finding of the same facts
in this resolution," and merely proceeds to pose the sole question
"whether or not the facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will and allowance and
recording of the will that was executed in Amoy, China." The
somersault executed by the trial court is premised on the ground
that "although the petitioner has established the execution and
validity of the lost will, yet he has not proved clearly and distinctly
the provisions of the will by the least two credible witnesses"; and
that, assuming that the will of Jose B. Suntay executed in Amoy,
China, was in accordance with the law of the Republic of China,
the certification of the Chinese Consul General in the Philippines
as the existence of such law is not admissible evidence in this
jurisdiction. In effect the resolution on the motion for
reconsideration promulgated by the trial court, and the decision of
the majority herein, adopt the position that the testimony of Judge
Anastacio Teodoro as to the provisions of the lost will, while
credible and perhaps sufficient in extent, is not corroborated by
the witnesses Go Toh and Ana Suntay and, therefore, falls short
of the requirement in section 6, Rule 77, of the Rules of Court that
the provisions of the lost will must be "clearly and distinctly proved
by at least two witnesses." That this requirement was obviously
construed, to mean that the exact provisions are to be
established, may be deduced from the following dialogue between
his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison,
new counsel for oppositor Federico C. Suntay, who appeared for
the first time at the ex parte hearing of the oppositor's motion for
new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost
will, the provisions of the lost will must be distinctly stated and
certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the
exact provisions of the will from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that
provision is clearly established by two credible witnesses so that
the Court could state that in the decision, we agree, that is the
very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the
degree of proof required to establish the contents of a lost or
destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the
disposition of the testator's properties; and this is especially
necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrongdoer from utilizing the rule as his "most effective weapon," or to
avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will
must be clearly and distinctly proved by at least two credible
witnesses before it can be admitted to probate; but this section
must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102109) and its spirit is complied with by holding that it applies only to
those provisions which affect the disposition of the testator's
property and which are of the substance of the will.
The allegations of the contents of the will are general, and under
ordinary circumstances, would be in sufficient; but the fact
alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To
require that a copy of the will or the language of the bequests, in
detail, should be pleaded, where no copy has been preserved,
and where the memory of the witnesses does not hold the exact
words, would not only deny the substance for mere form, but
would offer a premium upon the rascality of one whose interests
might suggest the destruction of a will. As said in Anderson vs.
Irwin, 101 Ill. 411: "The instrument in controversy having been
destroyed without the fault of the defendant in error ... and there
not appearing to be any copy of it in existence, it would be

equivalent to denying the complainant relief altogether to require

her to prove the very terms in which it was conceived. All that
could reasonably be required of her under the circumstances
could be to show in general terms the disposition which the
testator made of his property by the instruments; that it purported
to be his will and was duly attested by the requisite number of
witnesses." In Allison vs. Allison, 7 Dana 91, it was said in
speaking of the character and extent of proof required in such a
case:" nor is there any just ground to object to the proof because
the witnesses have not given the language of the will or the
substance thereof. They have given the substance of the different
devises as to the property or interest devised, and to whom
devised and we would not stop, in the case of a destroyed will, to
scan with rigid scrutiny the form of the proof, provided we are
satisfied of the substance of its provisions." (Jose vs. Casler 139
Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence
of such a writing, except as it may be presumed, under the maxim
Omnia preasumuntur in odium spoliateris." There was evidence
tending to show that the second will of Anne Lambie was in the
possession of Francis Lambie, and that it came to the hands of
the proponents, warranting the inference that it has been
suppressed or destroyed. If from this evidence the jury found such
paper destroyed the law permits the presumption that it was
legally drawn and executed, notwithstanding the terms of the
statute, which requires the revoking instrument to be formally
executed. If a will be lost, secondary evidence may be given of its
contents; if suppressed or destroyed, the same is true; and, if
necessary the law will prevent the perpetration of a fraud by
permitting a presumption to supply the suppressed proof. We
cannot assent to the proposition that the statute is so right as to
be the wrongdoer's most effective weapons. The misconduct
once established to the satisfaction of the jury, it is no hardship to
the wrongdoer to say. "Produce the evidence in your possession,
or we will presume that your opponent's contention is true." When
one deliberately destroys, or purposely induces another to
destroy, a written instrument subsequently become a matter of
judicial inquiry between the spoliator and an innocent party, the
latter will not be required to make strict proof of the contents of
such instrument in order to establish a right founded thereon.
Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re
Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities,
and bearing in mind that the circumstances of this case lead to
the only conclusion that the loss of the will in question is of course
imputable to those whose interests are adverse to the petitioner
and the widow Lim Billian, we have no hesitancy in holding the
view that the dispositions of the properties left by the deceased
Jose B. Suntay is provided in his will which was lost or snatched
in the manner recited in the decision of this Court in the case of
Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than
sufficiently proved by the testimony of Judge Anastacio Teodoro,
Go Toh, and Ana Suntay, supported conclusively by the draft of
the lost will presented in evidence as Exhibit "B", and even by the
testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April
19, 1948, made the following express findings with respect to the
testimony of Judge Teodoro: "Judge Anastacio Teodoro testified
that he opened the sealed envelope when it was given to him by
Go Toh preparatory to the presentation of the petition for the
probate of the said will. As the lawyer entrusted with that task, he
had to examine the will and have it copied to be reproduced or
appended to the petition. He could not do otherwise if he is worth
his salt as a good lawyer. He could not perform the stunt of "blind
flying" in the judicial firmament. Every step must be taken with
certainty and precision under any circumstances. He could not
have talked about the attorney's fees with Go Toh, unless he has
not examined the will beforehand. And, when he was shown
Exhibit B, he did not hesitate in declaring that it was the exact
draft of the will that was inside the envelope (Exhibit A), the

10
testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in the resolution on
the motion for reconsideration the trial Judge reiterated the
findings in his decision, although as regards the testimony of
Judge Teodoro admittedly "the only credible witness who testified
as to the provisions of the will," he observed that Judge Teodoro
had the draft Exhibit "B" in his hands while testifying. We cannot
see any justifying for the observation, assuming that Judge
Teodoro consulted the draft, since even the trial Judge granted
that he "could have testified clearly and distinctly on the
provisions of the said lost will, because he had kept the will in his
safe, in his office, for three days, after opening it, and he is well
versed in Spanish language in which the will was written." As a
matter of fact, however, it is not true that Judge Teodoro had the
draft in question before him while testifying as may be seen from
the following passages of the transcript:
Q. And, have you read that will which was inside this envelope,
Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original
will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary
evidence, the contents of the will, because according to the
Supreme Court, and that is a fact already decided, that the will of
Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I
said I was the one fighting for the postponement of the hearing of
the intestate case because I was asked by Don Alberto Barretto
to secure the postponement until the will that was executed by the
deceased is sent here by the widow from China, with whom we
communicated with several letters, and when the will arrived. I
had to check the facts as appearing in the will, and examined fully
in connection with the facts alleged in the intestate, and there was
a striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness
answer categorically the questions of Atty. Recto, it seems that
the answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully
unless the witness would relate and give all the facts.
COURT: The Attorney for the Administrator may move for the
striking out of any testimony that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of
the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying something and he
has not finished the sentence, and I want to ask the Court just to
allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to
check first was whether the value of the estate left by the
deceased was SIXTY THOUSAND PESOS (P60,000.00) as
Apolonio Suntay made it appear in his petition, and when I looked
at the original will, I found out that it was several hundred
thousand pesos, several thousands of pesos, hundreds of pesos,
that was very striking fact to me because the petition for intestate
was for SIXTY THOUSAND PESOS (P60,000.00), and I came to
know that it was worth more than SEVEN HUNDRED
THOUSAND (P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main
disposition of the will? "A. Yes, because our client were the
widow, Maria Natividad Lim Billian, and his son, Silvino, the only
son in the second marriage, that was very important for me to
know.
Q. How were the properties distributed according to that will?- "A.
The properties were distributed into three (3) parts, one part
which we call legitima corta, were equally distributed to the ten
(10) children, nine (9) in the first marriage, and one (1) in the
second marriage with Maria Natividad Lim Billian. The other third,

the betterment was given to four (4) children, Concepcion, and

Apolonio getting a quiet substantial share in the betterment,
around SIXTY THOUSAND (P60,000.00) for Concepcion,
Apolonio the amount of SEVENTY THOUSAND (70,000,00)
PESOS or little over, and then about ONE HUNDRED
THOUSAND (P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose equal to
Concepcion.
Q. So the betterment, as I understand from you went to four (4)
children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and
Jose in the first marriage? " A. Yes.
Q. What about the free disposal?-" A. The free disposal was
disposed in favor of the widow, Maria Natividad Lim Billian and
Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will
in connection with that particular of the usufruct of the widow?
"A. It was somewhat incorporated into the assets of the estate left
by the deceased.
Q. Do you remember the number of pages of which that will
consisted? "A. Twenty-three (23) pages.
Q. Do you remember if the pages were signed by the testator?
"A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was
it signed by the testator? "A. Yes, sir, and the attestation
clause was the last page signed by the three instrumental
witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel
Lopez, my former Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses signed on the different
pages of the will? "A. Yes, sir, they signed with their name
signatures.
Q. Showing you this document consisting of twenty-three (23)
pages in Spanish and which document appears already attached
to this same testamentary proceedings and already marked as
EXHIBIT B, will you please tell the Court if and for instance on
page eight (8) of this document, pagina octavo, it says, there are
handwritings in pencil, some of which read as follows: "Los cincooctavos (5/8) partes corresponds a mi hijo Emiliano", can you
recognize whose handwriting is that? "A. From my best
estimate it is the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the
same document Exhibit B, there is also the handwriting in pencil
which reads: "La otra sexta parte (6.a) corresponde a Bonifacio
Lopez", can you recognize that handwriting? "A. Yes, sir, this is
the handwriting of Don Alberto Barretto, and I wish to call the
attention of the Court to compare letter "B" which is in capital
letter with the signature of Don Alberto Barretto in the envelope,
"Alberto Barretto" and stroke identifies one hand as having written
those words.
Q. Will you please go over cursorily this document, Exhibit B
composed of twenty-three (23) pages and please tell the Court if
this document had anything to do with the will which according to
you was contained in the envelope, Exhibit A? "A. This is
exactly the contents of the original will which I received and kept
in my office inside the safe for three (3) days, and I precisely took
special case in the credits left by the deceased, and I remember
among them, were the De Leon family, and Sandiko, well known
to me, and then the disposition of the estate, divided into three (3)
equal parts, and I noticed that they are the contents of the will
read.
His Honor, Judge Pecson, was positive in his first decision that
"the testimony of Judge Anastacio Teodoro is corroborated by Go
Toh, one of the attesting witnesses, in his deposition (Exhibit D1)." Yet in setting aside his first decision, he remarked that Go
Toh's testimony did not prove clearly and distinctly the provision
of the lost will, because: "He did not, and he could not have done
so even if he tried because the original will was not read to him
nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the

11
contents of the said will, after its execution and sealing inside the
envelope (Exhibit A), read to him, because it was opened only
when Judge Teodoro had examined it and then subsequently
snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably
inconsistent with the following unequivocal statements of Go Toh
contained in hid disposition taken in Amoy, China, on April 17,
1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3)
Distribution of estates among children (4) Taking care of grave lot;
(5) guardianship of Silvino Suntay and (6) after paying his debts
he will have approximately 720,000 pesos left. This amount will
be divided into three equal parts of 240,000 pesos each. The first
part is to be divided equally among the ten children born by the
first and second wives and the second part among the three sons
Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000
pesos approximately; Jose Suntay and Concepcion Suntay,
36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get
approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Billian a total
of 290,000 approximately, and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and Jose Suntay will get
60,000 pesos each approximately. The rest of the children will get
approximately 29,000 each. The way of distribution of the
property of Jose B. Suntay, movable and immovable, and the
outstanding debts to be collected was arranged by Jose B.
Suntay.
xxx
xxx
xxx
78. On the occasion of the execution of the testament of Jose B.
Suntay, state whether or not you say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the
possession of Exhibit B and the testament the first time you saw
them on that occasion. ... Yes, I know who had possession of
them.
80. Can you say whether or not Jose B. Suntay happened to get
those documents later on, on that same occasion? ... He got
them after the execution.
81. Please name the person who gave those documents to Mr.
Suntay. ... Alberto Barretto gave the documents to Jose B.
Suntay.
82. Did the person who gave those documents to Suntay say
anything to him (Suntay) at the time of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said,
"You had better see if you want any correction."
84. What did Mr. Suntay do after those documents were given to
him? ... Jose B. Suntay looked at them and then gave one
copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents
to another man. ... Yes.
86. In the affirmative case, can you say which of the two
documents was given and who the man was? ... Yes he gave
Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to
whom he gave one of those documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr.
Suntay said to that man? ... He told him to read it for checking.
89. State if you know what did the man do with one of those
documents given to him. ... He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with
him? ... Jose B. Suntay looked at the original and checked
them.
91. What was done with those documents later on if there was
anything done with them? ... After checking, Jose B. Suntay
put Exhibit B in his pocket and had the original signed and
executed.
92. What was done with the testament of Jose B. Suntay after it
was signed by the testator and its witnesses? ... It was taken
away by Jose B. Suntay. (Exhibit D, D-1.)

Q. Did you know the contents of this envelope? "A. I knew that
it was a will.
Q. But did you know the provisions of the will? "A. It is about
the distribution of the property to the heirs.
Q. Did you know how the property was distributed according to
the will? "A. I know that more than P500,000 was for the widow
and her son, more than P100,000 for the heirs that are in the
family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and
that the will was written in Spanish. Was it written in typewriting or
in handwriting of somebody? "A. That will was written in
typewriting.
Q. Did you read the contents of that will, or do you know the
contents of that will? A. No, sir, because I do not know
Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A.
Because I was one of the signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was
written? ... I know a little Spanish.
23. Do you talk or write that language? I can write and talk a little
Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly
made the following findings: "Ana Suntay, one of the heirs and
who would be affected adversely by the legalization of the will in
question, also testified on rebuttal that she saw the original will in
the possession of Manuel Suntay immediately after the snatching.
She read it and she particularly remembers the manner in which
the properties were to be distributed. Exhibit B was shown to her
on the witness stand and she declared that the provision
regarding the distribution of the properties in said Exhibit B is the
same as that contained in the original will. Said testimony of Ana
Suntay, therefore, belies the testimony of Atty. Alberto Barretto."
And yet in the resolution on the motion for new trial, the trial
Judge had to state that "Ana Suntay on rebuttal did not, likewise,
prove clearly and distinctly the provisions of the said lost will,
because she has not had enough schooling and she does not
possess adequate knowledge of the Spanish language as shown
by the fact that she had to testify in Tagalog on the witness
stand." The potent error committed by Judge Pecson in reversing
his views as regards Ana's testimony, is revealed readily in the
following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se
refiere? "R. Probablemente seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo
ha contestado ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" "R. Yo leyo mi
hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el
documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento
sino si usted ha leido personalmente el testamento? "R. Si la
parte de la adjudicacion lo he leido para asegurarme a que
porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se
hacia la distribucion del alegado testamento? "R. Como ya he
declarado, que las propiedades de mi difunto padre se habian
dividido en tres partes, una tercera parte se nos adjudica a
nosotros diez (1) hijos en primeros nupcias y segunda nupcia, la
segunda tercera parte los adjudica a la viuda y a Silvino, y la otra
tercera parte se lo adjudica a sus hijos como mejora a Silvino,
Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento?
"R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o
menos las palabras en ese documento que se distribuia las
propiedades del defundo padre usted como usted relata aqui?
"Abogado Recto: Objetamos a la pregunta por falta de base,
porque elle solamente se fijo en la parte como se distribuian las

12
propiedades pero no ha dicho la testigo que ella lo ha puesto de
memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el
testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento
que usted leyo personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o
palabras como se hizo la distribucion en aquel supuesto
testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender
el espaol y sin embargo no podra repetir lo que ha leido, y no se
sabe todavia si ha estudiado el espaol bastante hasta el punto
de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto
testamento que Vda. leyo, usted poso el castellano? "R. Yo
entiendo el castellano, pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? "Rj. Si, seor,
En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios no han sido
continuous porque mi padre nos ingresaba en el colegio y
despues nos sacaba para estar afuera, y no era continuo nuestro
estudio.
P. Pero en total, como cuantos meses o aos estaba usted en el
colegio aprendiendo el castelano? "R. Unos cuatro o cinco
aos.
P. Entonces usted puede leer el castellano con facilidad, seora?
"R. Si, castellano sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en
castellano sin interpretacion o sin el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero
como de contestar, por eso quiero que la pregunta se me
traduzca antes. asi puedo contestar debidamente. (t.s.n. pp. 533534.)
We are really at a loss to understand why, without any change
whatsoever in the evidence, the trial Judge reversed his first
decision, particularly when he announced therein that "it is now
incumbent upon this court to delve into the evidence whether or
not Jose B. Suntay, deceased, left a will (the draft of which is
Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into
account the various circumstancial features presently to be
stated, that clearly confirm the testimony of Judge Anastacio
Teodoro, G. Toh and Ana Suntay, or otherwise constitute visible
indicia of oppositor's desire to frustrate the wishes of his father,
Jose B. Suntay.
In our opinion the most important piece of evidence in favor of the
petitioner's case is the draft of the lost will, Exhibit "B." Its
authenticity cannot be seriously questioned, because according to
the trial Judge himself, oppositor's own witness, Atty. Alberto
Barretto, admitted it to be "identical in substance and form to the
second draft which he prepared in typewriting." Indeed, all the
"A's" and "B's" in the handwritten insertions of the draft are very
similar to those in Barretto's admittedly genuine signature on the
envelope, Exhibit "A." The finding of Judge Pecson on the point in
his first decision (reiterated expressly in the resolution on the
motion for new trial), should control, not only because it is in
accordance with the evidence but because the oppositor had
failed and did not even attempt to have the trial Judge reconsider
or reverse his factual conclusions. The draft, Exhibit "B," having
been positively identified by the witnesses for the petitioner to be
an exact copy of the lost will of Jose B. Suntay, is therefore
conclusive. Oppositor's effort to show that said draft was never
signed in final form, and was thought of merely to deceive
petitioner's mother, Lim Billian, and that the will actually executed
and put in the envelope, Exhibit "A", provided that the testator's
estate would be divided equally among his heirs, as in the case of
intestacy, was necessarily futile because, if this allegation is true,

the will would not have been "snatched" from Go Toh and the
loss certainly cannot be imputed to the widow Lim Billian or the
petitioner; the snatched will would have been produced to put an
end to petitioner's and his mother's claim for greater inheritance
or participation under the lost will; and the envelope containing
the first will providing for equal shares, would not have been
entrusted to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first
marriage, only Angel, Jose and Federico Suntay had opposed the
probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having
expressly manifested in their answer that they had no opposition
thereto, since the petitioner's alternative petition "seeks only to
put into effect the testamentary disposition and wishes of their late
father." This attitude is significantly an indication of the justness of
petitioner's claim, because it would have been to their greater
advantage if they had sided with oppositor Federico Suntay in his
theory of equal inheritance for all the children of Jose B. Suntay.
Under the lost will or its draft Exhibit "B", each of the Suntay
children would receive only some P 25,000.00, whereas in case
of intestacy or under the alleged will providing for equal shares,
each of them would receive some P100,000.00. And yet the
Suntay children other than Angel, Jose and Federico had chosen
to give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which
Jose B. Suntay executed in Amoy, Fookien, China, on January 4,
1931, and probated in Amoy District Court, China, containing
virtually the same provisions as those in the draft Exhibit "B".
What better evidence is there of an man's desire or insistence to
express his last wishes than the execution of a will reiterating the
same provisions contained in an earlier will. Assuming that the
Chinese will cannot be probated in the jurisdiction, its probative
value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question
under which the widow Lim Billian was favored; and this again in
a way goes to corroborate the evidence for the petitioner as to the
contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your
father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the
inheritance of Maria Natividad Lim Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in
other words she is the most favored in the will, so when they sold
that, they sold everything, they are selling everything even the
conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of
Atty. Alberto Barretto, forgetful perhaps of the fact that the trial
Judge gave no credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution on the motion for
new trial all his findings in the first decision. If as Atty. Barretto
testified, Lim Billian was entitled under the will actually signed by
Jose Suntay only to P10,000.00, in addition to properties in China
value at P15,000.00, the fees of P25,000.00 admittedly asked by
him would absorb her entire inheritance; and this would normally
not be done by any law practitioner. Upon the other hand, there is
evidence to the effect that Atty. Barretto might have become
hostile to the petitioner and his mother Lim Billian in view of the
latter's refusal to agree to the amount of P25,000.00 and her offer
to pay only P100.00. There is also evidence tending to show that
as early as 1942, Atty. Barretto was paid by oppositor Federico
Suntay the sum of P16,000.00 which, although allegedly for
services in the testate proceedings, was paid out of the personal
funds of said oppositors to supply Atty. Barretto's needs. This
circumstances perhaps further explains why the latter had to
support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching"
case and the first decision of Judge Pecson in this case, both in
the hope and in the belief (1) that the first would reveal the

13
manner by which those adversely affected had planned to prevent
the last wishes of the deceased Jose B. Suntay from being
carried on, and (2) that the second, by the facts correctly recited
therein and by the force and accuracy of its logic would amply
show the weakness and utter lack of foundation of the resolution
on the motion for reconsideration. We have set forth at length
pertinent portions of the testimony of various witnesses to
demonstrate more plainly the plausibility of the original decision of
Judge Pecson, and the latter's consequent bad judgment in
having forced himself to accomplish a somersault, a feat which
the majority, in my opinion, have mistakenly commended. We
have found this to be one of the cases of this court in which we
have had occasion to participate, where there can be absolutely
no doubt as to the result outright reversal for which, with
due respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision promulgated
on 31 July 1954, affirming the decree of the Court of First
Instance of Bulacan which disallowed the alleged last will and
testament executed in November 1929 and the alleged last will
and testament executed in Kulangsu, Amoy, China, on 4 January
1931, by Jose B. Suntay, without pronouncement as to costs, on
grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states
that
. . . This petition was denied because of the loss of said will after
the filing of the petition and before the hearing thereof, . . .
because according to him the "will was lost before not after (the)
filing of the petition." This slight error, if it is an error at all, does
not, and cannot, after the conclusions and pronouncements made
in the judgment rendered in the case. In his alternative petition the
appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim Billian, the
mother of herein petitioner filed a petition in this court for the
allowance and probate of a last will and testament executed, and
signed in the Philippines in the year 1929 by said deceased Jose
B. Suntay. (P. 3, amended record on appeal.)
If such will and testament was already lost or destroyed at the
time of the filing of the petition by Maria Natividad Lim Billian (15
October 1934), the appellant would have so stated and alleged. If
Anastacio Teodoro, a witness for the appellant, is to be believed
when he testified
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), ... Go Toh arrived at his law office in the De Los
Reyes Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . .
and
If the will was snatched after the delivery thereof by Go Toh to
Anastacio Teodoro and returned by the latter to the former
because they could not agree on the amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition, the
will was not yet lost. And if the facts alleged in paragraph 5 of the
appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid
petition for probate filed by Maria Natividad Lim Billian in view of
the loss and/or destruction of said will subsequent to the filing of
said petition and prior to the hearing thereof, and the alleged
insufficiency of the evidence adduced to established the loss
and/or destruction of the said will, (Emphasis supplied, P. 3,
amended record on appeal.)
may be relied upon, then the alleged error pointed out by the
appellant, if it is an error, is due to the allegation in said paragraph
of his alternative petition. Did the appellant allege the facts in said
paragraph with reckless abandon? Or, did the appellant make the
allegation as erroneously as that which he made in paragraph 10
of the alternative petition that "his will which was lost and ordered

probated by our Supreme Court in G. R. No. 44276, above

referred to?" (P. 7, amended record on appeal.) This Court did not
order the probate of the will in said case because if it did, there
would have been no further and subsequent proceedings in the
case after the decision of this Court referred to had been
rendered and had become final. Be that as it may, whether the
loss of the will was before or subsequent to the filing of the
petition, as already stated, the fact would not affect in the slightest
degree the conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision of this
Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63
Phil., 793, constitutes res judicata on these points: (a) that only
one will was prepared by attorney Barretto, and (b) that the issue
to be resolved by the trial court was whether the draft (Exhibit B)
is a true copy or draft of the snatched will, and contends that
these points already adjudged were overlooked in the majority
opinion. The decision of this Court in the case referred to does not
constitute res judicata on the points adverted to by the appellant.
The only point decided in that case is that "the evidence is
sufficient to establish the loss of the document contained in the
envelope." In the opinion of this Court, this circumstance justified
"the presentation of secondary evidence of its contents and of
whether it was executed with all the essential and necessary legal
formalities." That is all that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
and other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and whether
the latter was executed with all the formalities required by law for
its probate. The testimony of Alberto Barretto bears importantly in
this connection. (P. 796, supra.)
Appellant's contention that the question before the probate court
was whether the draft (Exhibit B) is a true copy or draft of the
snatched will is a mistaken interpretation and view of the decision
of this Court in the case referred to, for if this Court did make that
pronouncement, which, of course, it did not, such pronouncement
would be contrary to law and would have been a grievous and
irreparable mistake, because what the Court passed upon and
decided in that case, as already stated, is that there was sufficient
evidence to prove the loss of the of the will and that the next step
was to prove by secondary evidence its due execution in
accordance with the formalities of the law and its contents, clearly
and districtly, by the testimony of at least two credible witnesses. 1
The appellant invokes Rule 133 to argue that Rule 77 should not
have been applied to the case but the provisions of section 623 of
the Code of Civil Procedure (Act No. 190), for the reason that this
case had been commenced before the Rules of Court took effect.
But Rule 133 cited by the appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all
cases brought after they take effect, and also all further
proceedings in cases then pending, except to the extent that in
the opinion of the court their application would not be feasible or
would work injustice, in which event the former procedure shall
apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further
proceedings in a case then pending. But even if section 623 of the
Code of Civil Procedure were to be applied, still the evidence to
prove the contents and due execution of the will and the fact of its
unauthorized destruction, cancellation, or obliteration must be
established "by full evidence to the satisfaction of the Court." This
requirement may even be more strict and exacting than the twowitness rule provided for in section 6, Rule 77. The underlying
reason for the exacting provisions found in section 623 of Act No.
190 and section 6, Rule 77, the product of experience and
wisdom, is to prevent imposters from foisting, or at least to make
for them difficult to foist, upon probate courts alleged last wills or
testaments that were never executed.
In commenting unfavorably upon the decree disallowing the lost
will, both the appellant and the dissenting opinion suffer from an

14
infirmity born of a mistaken premise that all the conclusions and
pronouncements made by the probate court in the first decree
which allowed the probate of the lost will of the late Jose B.
Suntay must be accepted by this Court. This is an error. It must
be borne in mind that this is not a petition for a writ of certiorari to
review a judgment of the Court of Appeals on questions of law
where the findings of fact by said Court are binding upon this
Court. This is an appeal from the probate court, because the
amount involved in the controversy exceeds P50,000, and this
Court in the exercise of its appellate jurisdiction must review the
evidence and the findings of fact and legal pronouncements made
by the probate court. If such conclusions and pronouncements
are unjustified and erroneous this Court is in duty bound to correct
them. Not long after entering the first decree the probate court
was convinced that it had committed a mistake, so it set aside the
decree and entered another. This Court affirmed the last decree
not precisely upon the facts found by the probate court but upon
facts found by it after a careful review and scrutiny of the
evidence, parole and documentary. After such review this Court
has found that the provisions of the will had not been established
clearly and distinctly by at least two credible witnesses and that
conclusion is unassailable because it is solidly based on the
established facts and in accordance with law.
The appellant and the dissent try to make much out of a pleading
filed by five (5) children and the widow of Apolonio Suntay,
another child of the deceased by the first marriage, wherein they
state that
. . . in answer to the alternative petition filed in these proceedings
by Silvino Suntay, through counsel, dated June 18, 1947, to this
Honorable Court respectfully state that, since said alternative
petition seeks only to put into effect the testamentary disposition
and wishes of their late father, they have no opposition thereto.
(Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the
lost will? Of course not. If the lost will sought to be probated in the
alternative petition was really the will of their late father, they, as
good children, naturally had, could have, no objection to its
probate. That is all that their answer implies and means. But such
lack of objection to the probate of the lost will does not relieve the
proponent thereof or the party interested in its probate from
establishing its due execution and proving clearly and distinctly
the provisions thereof at least two credible witnesses. It does not
mean that they accept the draft Exhibit B as an exact and true
copy of the lost will and consent to its probate. Far from it. In the
pleading copied in the dissent, which the appellant has owned
and used as argument in the motion for reconsideration, there is
nothing that may bolster up his contention. Even if all the children
were agreeable to the probate of said lost will, still the due
execution of the lost will must be established and the provisions
thereof proved clearly and distinctly by at least two credible
witnesses, as provided for in section 6, Rule 77. The appellant's
effort failed to prove what is required by the rule. Even if the
children of the deceased by the first marriage, out of generosity,
were willing to donate their shares in the estate of their deceased
father or parts thereof to their step mother and her only child, the
herein appellant, still the donation, if validly made, would not
dispense with the proceedings for the probate of the will in
accordance with section 6, Rule 77, because the former may
convey by way of donation their shares in the state of their
deceased father or parts thereof to the latter only after the decree
disallowing the will shall have been rendered and shall have
become final. If the lost will is allowed to probate there would be
no room for such donation except of their respective shares in the
probated will.
The part of the deposition of Go Toh quoted in the motion for
reconsideration which appellant underscores does not refer to Go
Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez
read the draft (Exhibit B) for the purpose of checking it up with the
original held and read by Jose B. Suntay, Go Toh should not have
understood the provisions of the will because he knew very little

of the Spanish language in which the will was written (answer to

22nd and 23rd interrogatories and to X-2 cross-interrogatory). In
fact, he testifies in his deposition that all he knows about the
contents of the lost will was revealed to him by Jose B. Suntay at
the time it was executed (answers to 25th interrogatory and to X-4
and X-8 cross-interrogatories); that Jose B. Suntay told him that
the contents thereof are the same as those of the draft [Exhibit B]
(answers to 33rd interrogatory and to X-8 cross-interrogatory);
that Mrs. Suntay had the draft of the will (Exhibit B) translated into
Chinese and he read the translation (answer to the 67th
interrogatory); that he did not read the will and did not compare it
(check it up) with the draft [Exhibit B] (answers to X-6 and X-20
cross-interrogatories). We repeat that
. . . all of Go Toh's testimony by deposition on the provisions of
the alleged lost will is hearsay, because he came to know or he
learned of them from information given him by Jose B. Suntay
and from reading the translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the
conclusion that Ana Suntay, a witness for the appellant could not
have read the part of the will on adjudication. According to her
testimony "she did not read the whole will but only the
adjudication," which, this Court found, "is inconsistent with her
testimony in chief (to the effect) that "after Apolonio read that
portion, then he turned over the document of Manuel, and he
went away." (P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it Manuel or
Apolonio?" In answer to his own question the appellant says: "The
more obvious inference is that it was Apolonio and not Manuel
who went away." This inference made by the appellant not only is
not obvious but it is also illogical, if it be borne in mind that
Manuel came to the house of Apolonio and it happened that Ana
was there, according to her testimony. So the sentence "he went
away" in Ana's testimony must logically and reasonably refer to
Manuel, who was a caller or visitor in the house of his brother
Apolonio and not to the latter who was in his house. If it was
Apolonio who "went away," counsel for the appellant could have
brought that out by a single question. As the evidence stands
could it be said that the one who went away was Apolonio and not
Manuel? The obvious answer is that it was Manuel. That
inference is the result of a straight process of reasoning and clear
thinking.
There is a veiled insinuation in the dissent that Alberto Barretto
testified as he did because he had been paid by Federico C.
Suntay the sum of P16,000. Federico C. Suntay testifies on the
point thus
Q. You mentioned in your direct testimony that you paid certain
amount to Atty. Alberto Barretto for services rendered, how much
did you pay? A. Around SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment? A. During the Japanese
time.
Q. Did you state that fact in any accounts you presented to the
Court? A. I do not quite remember that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your intention to charge
it to the state or to collect it later from the estate? A. Yes, sir.
Q. More or less when was such payment made, during the
Japanese time, what particular month and year, do you
remember? A. I think in 1942.
Q. And you said you paid him because of services he rendered?
A. Upon the order to the Court.
Q. And those services were precisely because he made a will and
he made a will which was lost, the will of Jose B. Suntay? ... (P.
181, t. s. n., supra.) A. I think I remember correctly according to
ex-Representative Vera who is the administrator whom I followed
at that time, that was paid according to the services rendered by
Don Alberto Barretto with regard to our case in the testamentaria
but he also rendered services to my father.
Q. At least your Counsel said that there was an order of the Court

15
ordering you to pay that, do you have that copy of the order?
A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n.,
supra.).
So the sum of P16,000 was paid upon recommendation of the
former administrator and order of the probate court for services
rendered by Alberto Barretto not only in the probate proceedings
that also for services rendered to his father. But if this sum of
P16,000 paid to Alberto Barretto upon recommendation of the
previous administrator and order of the probate court for
professional services rendered in the probate proceedings and to
the deceased in his lifetime be taken against his truthfulness and
veracity as to affect adversely his testimony, what about the
professional services of Anastacio Teodoro who appeared in this
case as one of the attorneys for the petitioner-appellant? (P. 2, t.
s. n., hearing of 13 October 1947.)Would that not likewise or by
the same token affect his credibility? It is the latter's interest more
compelling than the former's?
For the foregoing reasons, the motion for reconsideration is
denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.
Paras, C.J., dissenting:
For the same reasons and considerations set forth in detail in my
dissent promulgated on July 31, 1954, I vote to grant the motion
for reconsideration.
Montemayor and Jugo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-32636
March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.
A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant. Harvey & O' Brien and Gibbs &
McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix
appeals from a decision of Judge of First Instance Tuason
denying the probate of the document alleged to by the last will
and testament of the deceased. Appellee is not authorized to
carry on this appeal. We think, however, that the appellant, who
appears to have been the moving party in these proceedings, was
a "person interested in the allowance or disallowance of a will by
a Court of First Instance," and so should be permitted to appeal to
the Supreme Court from the disallowance of the will (Code of Civil
Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925],
42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in
Elkins, West Virginia, on November 3, 1925, by Hix who had his
residence in that jurisdiction, and that the laws of West Verginia
Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and
as certified to by the Director of the National Library. But this was
far from a compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. the courts of
the Philippine Islands are not authorized to take American Union.
Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not
met. There was no was printed or published under the authority of
the State of West Virginia, as provided in section 300 of the Code
of Civil Procedure. Nor was the extract from the law attested by
the certificate of the officer having charge of the original, under
the sale of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was introduced to
show that the extract from the laws of West Virginia was in force
at the time the alleged will was executed.

In addition, the due execution of the will was not established. The
only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the
will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will
in the presence of the testator and of each other as the law of
West Virginia seems to require. On the supposition that the
witnesses to the will reside without the Philippine Islands, it would
then the duty of the petitioner to prove execution by some other
means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of
the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own
theory by attempting to have the principal administration in the
Philippine Islands.
While the appeal pending submission in this court, the attorney for
the appellant presented an unverified petition asking the court to
accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing
purporting to be the was presented for probate on June 8, 1929,
to the clerk of Randolph Country, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Wamsley
and Joseph L. MAdden, the subscribing witnesses thereto , and
ordered to be recorded and filed. It was shown by another
document that, in vacation, on June 8, 1929, the clerk of court of
Randolph Country, West Virginia, appointed Claude W. Maxwell
as administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased. In this connection, it is to be noted that
the application for the probate of the will in the Philippines was
filed on February 20, 1929, while the proceedings in West Virginia
appear to have been initiated on June 8, 1929. These facts are
strongly indicative of an intention to make the Philippines the
principal administration and West Virginia the ancillary
administration. However this may be, no attempt has been made
to comply with Civil Procedure, for no hearing on the question of
the allowance of a will said to have been proved and allowed in
West Virginia has been requested. There is no showing that the
deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to
have been awarded Edward Randolph Hix from Annie Cousins
Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-22595
November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant. Camus and Delgado
for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo
is in question in this case.
The judicial administrator of this estate filed a scheme of partition.
Andre Brimo, one of the brothers of the deceased, opposed it.
The court, however, approved it.
The errors which the oppositor-appellant assigns are:

16
(1) The approval of said scheme of partition; (2) denial of his
participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the
approval of the purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of said business;
and (5) the declaration that the Turkish laws are impertinent to
this cause, and the failure not to postpone the approval of the
scheme of partition and the delivery of the deceased's business to
Pietro Lanza until the receipt of the depositions requested in
reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in
question puts into effect the provisions of Joseph G. Brimo's will
which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or
article 10 of the Civil Code which, among other things, provides
the following:
Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the amount of the
successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose
succession is in question, whatever may be the nature of the
property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the Turkish
laws, inasmuch as he did not present any evidence showing what
the Turkish laws are on the matter, and in the absence of
evidence on such laws, they are presumed to be the same as
those of the Philippines. (Lim and Lim vs. Collector of Customs,
36 Phil., 472.)
It has not been proved in these proceedings what the Turkish
laws are. He, himself, acknowledges it when he desires to be
given an opportunity to present evidence on this point; so much
so that he assigns as an error of the court in not having deferred
the approval of the scheme of partition until the receipt of certain
testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove
such laws does not constitute an error. It is discretionary with the
trial court, and, taking into consideration that the oppositor was
granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not being contrary to
our laws in force, must be complied with and executed.
lawphil.net
Therefore, the approval of the scheme of partition in this respect
was not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he is
one of the persons designated as such in will, it must be taken
into consideration that such exclusion is based on the last part of
the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish
citizen, this citizenship having been conferred upon me by
conquest and not by free choice, nor by nationality and, on the
other hand, having resided for a considerable length of time in the
Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the
Philippine islands, requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons
who fail to comply with this request.
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the testator's
will to distribute his property, not in accordance with the laws of
his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any
legatee who fails to comply with it, as the herein oppositor who,

by his attitude in these proceedings has not respected the will of

the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary
to law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals
shall be considered as not imposed and shall not prejudice the
heir or legatee in any manner whatsoever, even should the
testator otherwise provide.
And said condition is contrary to law because it expressly ignores
the testator's national law when, according to article 10 of the civil
Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited,
is considered unwritten, and the institution of legatees in said will
is unconditional and consequently valid and effective even as to
the herein oppositor.
It results from all this that the second clause of the will regarding
the law which shall govern it, and to the condition imposed upon
the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions
and requests are perfectly valid and effective it not appearing that
said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is
directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one of
the legatees, and the scheme of partition submitted by the judicial
administrator is approved in all other respects, without any
pronouncement as to costs.
So ordered.
Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3677
November 29, 1951
In the Matter of the Testate Estate of BASIL GORDON
BUTLER; MERCEDES LEON, petitioner-appellant, and ADA
LOGGEY GHEZZI, administratrix-appellant,
vs.
MANUFACTURERS LIFE INSURANCE CO., thru Philippine
Branch, oppositor-appellee.
Juan S. Rustia for petitioner and appellant. Peralta & Agrava for
oppositor and appellee.
TUASON, J.:
This is an appeal from the Court of First Instance of Manila which
denied a motion of the administratrix in the matter of the testate
estate of Basil Gordon Butler (Special Proceedings No. 6218).
The motion prayed for the citation of the Manager of the Manila
Branch of the Manufacturers Life Insurance Co. of Toronto,
Canada, to appear and under a complete accounting of certain
funds the said Branch allegedly has in its possession and claimed
to belong to the estate. His Honor, Judge Rafael Amparo of the
court below, held that these funds "came into the possession of
the Manufacturers Life Insurance Co., Inc., regularly and in due
course and, therefore, sees no justifiable ground to require said
company to render an accounting thereon."
The essential facts are that Basil Gordon Butler, formerly a
resident of the Philippines, died in Brooklyn, New York City, in
1945, leaving a will which was duly probated in the Surrogate's
Court of New York County on August 3 of the same year, and of
which James Ross, Sr., James Madison Ross, Jr. and Ewald E.
Selph were named executors. The estate having been settled, the
proceedings were closed on July 17, 1947.
The will contained this residuary clause:
After payment of these legacies and my just debts, including
funeral expenses, I devise, give and bequeath all of my remaining
estate and personal effects of which I may die possessed to
Mercedes de Leon, of Maypajo, Caloocan, Rizal, to wit: the

17
personal effects to be delivered to her for her use and profit; the
moneys, securities and other valuable property, not personal
effects, to be held in trust for her benefit by my executors, at their
absolute discretion, to be administered for her permanent benefit
in whatever way they may consider most advantageous in the
circumstances existing. Since the said Mercedes de Leon is not of
sound judgment, and discretion in the handling of money, it is not
my wish that she be given any sums of money other than for her
current needs, except as my executors in their judgment deem
advantageous to her. In case the amount available for this
bequest be sufficient to purchase an adequate annuity, the
executors in their discretion may do so. And I attest and direct
that I do not wish to intend that the action of my executors upon
their discretion in this matter be questioned by anyone
whatsoever.
For the purpose of carrying out that testamentary provision,
James Madison Ross was appointed trustee by the New York
County Surrogate's Court on February 4, 1948. Once appointed,
and with the beneficiary signing the application with him, Ross
bought an annuity from the Manufacturer's life Insurance Co. at its
head office in Toronto, Canada, paying in advance $17,091.03 as
the combined premiums. The contract stipulates for a monthly
payment of $57.60 to Mercedes Benz during her lifetime, with the
proviso that in the event of her death, the residue, if any, of the
capital sum shall be paid in one sum to James Madison Ross or
his successor as trustee. And beginning May 27, 1948, Mercedes
de Leon has been receiving the stipulated monthly allowance
through the Insurance Company's Manila Office.
With the object, so it would seem, of getting hold at once of the
entire amount invested in the annuity, Mercedes de Leon on
September 4, 1948, presented Butler's will for probate in the
Court of First Instance of Manila, and secured the appointment of
Ada Loggey Ghezzi as administratrix with the will annexed early
in 1949. (James Madison Ross and Ewald E. Selph had expressly
declined appointment as executors "on the ground that the
probate proceedings of the above estate were terminated by the
Surrogate's Court of the County of New York, New York City, U.
S. A., and that there are no properties of the estate left to be
administered.") After having qualified, the administratrix filed the
motion which Judge Amparo has denied; and as the party most if
not solely interested in that motion, Mercedes de Leon has joined
Ghezzi in this appeal.
The administration of Butler's estate granted in New York was the
principal or domiciliary administration (Johannes vs. Harvey, 43
Phil., 175), while the administration taken out in the Philippines is
ancillary. However, the distinction serves only to distinguish one
administration from the other, for the two proceedings are
separate and independent. (34 C.J.S. 1232,1233).
The important thing to inquire into is the Manila court's authority
with respect to the assets herein involved. The general rule
universally recognized is that administration extends only to the
assets of a decedent found within the state or country where it
was granted, so that an administrator appointed in one state or
country has no power over property in another state or country.
(Keenan vs. Toury, 132 A.L.R. 1362; Nash vs. Benari, 3 A.L.R.
61; Michigan Trust Co. vs. Chaffee, 149 A.L.R. 1078).This
principle is specifically embodied in section 4 of Rule 78 of the
Rules of Court:
Estate, how administered.When a will is thus allowed, the court
shall grant letters testamentary, or letters of administration with
the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to
such will, so far as such will may operate upon it; and the residue,
if any, shall be disposed of as is provided by law in cases of
estates in the Philippines belonging to persons who are
inhabitants of another state or country.
It is manifest from the facts before set out that the funds in
question are outside the jurisdiction of the probate court of Manila.

Having been invested in an annuity in Canada under a contract

executed in the country, Canada is the suits of the money. The
party whose appearance the appellant seeks is only a branch or
agency of the company which holds the funds in its possession,
the agency's intervention being limited to delivering to the
annuitant the checks made out and issued from the home office.
There is no showing or allegation that the funds have been
transferred or removed to the Manila Branch.
Even if the money were in the hands of the Manila Branch, yet it
no longer forms part of butler's estate and is beyond the control of
the court. It has passed completely into the hands of the company
in virtue of a contract duly authorized and validly executed.
Whether considered as a trust or as simple consideration for the
company's assumed obligation, which it has been religiously
performing, of paying periodical allowances to the annuitant, the
proceeds of the sale can not be withdrawn without the consent of
the company, except, upon the death of the annuitant, the
residuary legatee may claim the remainder, if there be any.
Neither the domiciliary or ancillary executor of Butler's will, nor the
trustee, nor the annuitant has disposition of any of these funds
beyond the amounts and except upon the conditions agreed upon
in the contract for annuity.
In the third place, the power of the court to cite a person for the
purpose stated in the administratrix's motion is defined in section
7 of Rule 88, which provides.
Person entrusted with estate compelled to render account.The
court, on complaint of an executor or administrator, with any part
the estate of the deceased to appear before it, and may require
such person to render a full account, on oath, of the money,
goods, chattels, bonds, accounts, or other papers belonging to
such estate as came to his possession in trust for such executor
or administrator, and for his proceedings thereon; and if the
person so cited refuses to appear to render such account, the
court may punish him for contempt as having disobeyed a lawful
order of the court.
The appellant administratrix did not entrust to the appellee the
money she wants the latter to account for, nor did the said money
come to the appellee's possession in trust for the administratrix.
In other words, the administratrix is a complete stranger to the
subject of the motion and to the appellee. There being no
creditors, the only subject of the motion, we incline to believe, is
to enable Mercedes de Leon to get the legacy in a lump sum in
complete disregard of the wishes of the testator, who showed
deep concern for her welfare, and of the annuity contract which
the annuitant herself applied for in conjunction with the trustee.
All in all, from every standpoint, including that of the annuitant's
financial well-being, the motion and the appeal are utterly
groundless and ill-advised.
The appealed order therefore is affirmed with costs against the
appellants.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and
Bautista Angelo, JJ., concur.
EN BANC
[G. R. No. 4898. March 19, 1909.]
SALVADOR GUERRERO, guardian of the minors Maria
Manuela and Maria del Carmen Sanchez Muoz, PlaintiffAppellee, vs. LEOPOLDO TERAN, Defendant-Appellant.
DECISION
JOHNSON, J.:
On the 18th day of March, 1908, the Plaintiff commenced an
action against the Defendant to recover the sum of P4,129. 56
and costs. This amount was claimed by the Plaintiff from the
Defendant upon the theory that the Defendant had been the
administrator of the estate of Antonio Sanchez Munoz from the
1st day of September, 1901, until the 22d day of October, 1906.
The Plaintiff made a part of his complaint the following items of
indebtedness: chanrobles virtualawlibrary

18
Difference, account of the property Bonga
P10. 55
Difference, account of the property Basag
218. 75
Difference, small accounts Bonga and Basag
8. 80
Difference, account estate of A. Sanchez
150. 00
Difference, account heirs of J. M. Ceballos
224. 81
Difference, account hemp of La Trinidad
82. 87
Difference, account workmen at La Trinidad 80. 70
Difference, account lates of Ligao
2. 00
Small accounts of Bonga and Basag 3,676. 84
Cost of 1 lamp and 1 barometer
33. 50
Workmen at La Trinidad
5,709. 90
Excess of salaries paid account general expenses at La
Trinidad
670. 00
Account of cockpit
34. 15
Account late Caualog 220. 10
Account Jesus Teran
235. 92
Account Antonio Moreda
1,029. 83

Total
12,388. 72
In answer to the said complaint, the Defendant admitted certain
allegations and denied others. The Defendant admitted that he
owed the Plaintiff P188. 39 but claimed that the Plaintiff owed him
the sum of P482. 14, and that the Plaintiff, therefore, still owed to
the Defendant the difference between P188. 39 and P482. 14, or
the sum of P293. 75, for which latter amount the Defendant
prayed for judgment, with interest and costs against the Plaintiff.
After hearing the evidence adduced during the trial of the cause,
the lower court found from the evidence that the Defendant, as
administrator of the estate of Antonio Sanchez Muoz, or that part
of the said estate belonging to the Plaintiff, owed the Plaintiff the
sum of P3,447. 46, with interest at 6 per cent until the same
amount should be fully paid. From this decision of the lower court
the Defendant appealed and made the following assignments of
error: chanrobles virtualawlibrary
1.
The court erred in holding that the Defendant, from
September 17, 1901, to October 6, 1906, managed and
administered the estate of Sanchez Muoz as a judicial
administrator or executor.
2.
The court erred in holding that the Defendant was
responsible to the Plaintiffs for the loans made to different
persons for different accounts, and for credits against the persons
mentioned in the complaint.
3.
The court erred in declaring in the judgment that the
difference in the weight of the scales was illegal.
4.
And the court erred in sentencing the Defendant to pay
the costs specified in the judgment.
With reference to the first above assignment of error, from the
record to this court the following facts appear: chanrobles
virtualawlibrary
First. That the Defendant Leopoldo Teran was, on the 17th day of
September, 1901, appointed as administrator of said estate. The
record also discloses that the Defendant entered into a bond in
the sum of 10,000 dollars, gold, for the faithful performance of his
duties as such representative of the estate of Antonio Sanchez
Muoz.
Second. The record further discloses that upon the 18th day of
March, 1902, the Court of First Instance of the Province of Albay
appointed Maria Munoz y Gomez as guardian for the said Maria
Manuela and Maria del Carmen Sanchez Munoz, and that the
said Maria Munoz y Gomez gave the required bond for the faithful
performance of her duties as such guardian.
Third. While there are some indications in the record that the
Defendant continued to act as the administrator of said estate
after the appointment of the said Maria Munoz y Gomez, up to
and including the 6th day of October, 1906, yet the fact exists and
must be accepted as true that the said Maria Munoz Gomez was
the actual representative of the said Maria Manuela and Maria del
Carmen Sanchez Munoz in the administration of their interests in
the estate of the said Antonio Sanchez Munoz, from and after the

18th day of March, 1902, until the 6th day of October, 1906, and
therefore the said Maria Munoz y Gomez, as such guardian and
administratrix of the estate of the said minors, must be held
responsible for the property belonging to said minors during the
period while she (Maria Munoz y Gomez) was the actual guardian
of said minors.
Fourth. On the 6th day of October, 1906, the Court of First
Instance of the Province of Albay, for the reason that the said
Maria Munoz y Gomez was not a resident of the Philippine
Islands at the time of her appointment (the 18th day of March,
1902) removed her as such guardian and appointed as guardian
of said minors Felix Samson, and required from said Samson, as
provisional guardian, a bond in the sum of P2,000. On the 18th
day of October, 1906, the said Samson duly executed the bond
as required.
From the order of the judge annulling the appointment of the said
Maria Munoz y Gomez her lawyers appealed to the Supreme
Court, which appeal was subsequently withdrawn. The order
therefore revoking the appointment of the said Maria Munoz y
Gomez became final. The mere fact, however, that she had been
removed as said guardian did not relieve her, nor her bondsmen
from liability to the minors during the time that she was duly acting
as said guardian. It must be clear, therefore, that the said Maria
Munoz y Gomez is responsible to said minors for the
administration of their interests in the estate of the said Antonio
Sanchez Munoz from the time of her acceptance of said
appointment on the 18th day of March, 1902, up to the time of her
removal on the 6th day of October, 1906. If during this time she
allowed other persons to handle the property of her wards and if
any mismanagement or loss occurred thereby, the responsibility
must fall upon her. Unquestionably, she may have an action
against the persons to whom she entrusted the direct
management of said estate for any loss which they may have
negligently and corruptly occasioned her. Therefore, if any loss
occurred to the Plaintiff between the 18th day of March, 1902, and
the 6th day of October, 1906, they have a right of action only
against the said Maria Munoz Gomez as their legal guardian and
under the law the administratrix of the property of their estate.
In the claim presented by the Plaintiff against the Defendant no
dates are given showing the time of the particular loss or losses
occasioned by the Defendant. As was said above, the Defendant
was liable for losses only during the time that he was acting as
the legal representative of the said minors in the management of
their estate, from the 17th day of September, 1901, up to the time
that he was superseded by the aid Maria Munoz y Gomez, on the
18th day of March, 1902. There is no proof showing that any of
the losses constituting the amount which the Plaintiff claims
occurred within this period. However, the Defendant
acknowledged that of the amount claimed by the Plaintiff, he
owes to them the sum of P188. 39.
There is no claim of any loss or that the estate has not been
properly managed since the appointment of the said Felix
Samson on the 6th day of October, 1906.
From a consideration of all of the evidence brought to this court,
we reach the following conclusions: chanrobles virtualawlibrary
First. That the Defendant, Leopoldo Teran, was the duly
appointed and recognized representative of the minors Maria
Manuela and Maria del Carmen Sanchez Munoz in the
administration of their interests in the estate of the said Antonio
Sanchez Munoz from the 17th day of September, 1901, until the
18th day of March, 1902.
Second. That the said Doa Munoz y Gomez was the duly
appointed representative of the said minors in the administration
of their interests in the estate of the said Antonio Sanchez Munoz
from the 18th day of March, 1902, until the 6th day of October,
1906.
Third. That the said Leopoldo Teran was responsible to the
Plaintiff (the said minors) for the fruits and profits resulting from
their interests in the estate of the said Antonio Sanchez Munoz
from the said 17th day of September, 1901, to the 18th day of

19
March, 1902.
Fourth. That the said Doa Maria Munoz y Gomez was
responsible to the Plaintiff (the said minors) for the fruits and
profits resulting from the management of the estate of the said
Don Antonio Sanchez Munoz from the 18th day of March, 1902,
until the 6th day of October, 1906.
The record not disclosing that any of the amounts claimed by the
Plaintiff were due as a result of the management of the aid estate
during the time while the said Defendant was administering their
interests therein, except the sum of P188. 39, admitted to be due
by the Defendant, we are of the opinion, and so hold, that the only
amount which the Plaintiff is entitled to recover in this action is the
said amount of P188. 39.
Doa Maria Munoz y Gomez was, as above indicated, removed
upon the theory that her appointment was void because she did
not reside in the Philippine Islands. There is nothing in the law
which requires the courts to appoint residents only as
administrators or guardians. However, notwithstanding the fact
that there are no statutory requirements upon this question, the
courts, charged with the responsibilities of protecting the estates
of deceased persons, wards of the estate, etc., will find much
difficulty in complying with this duty by appointing administrators
and guardians who are not personally subject to their jurisdiction.
Notwithstanding that there is no statutory requirement, the courts
should not consent to the appointment of persons as
administrators and guardians who are not personally subject to
the jurisdiction of our courts here.
We deem it unnecessary to discuss the other assignments of
error for the reason that there is no evidence in the record
indicating any liability on the part of the Defendant other than his
admission above indicated.
For the reasons above stated, the judgment of the lower court is
hereby reversed, without any special finding as to costs.
Arellano, C.J., Torres and Mapa, JJ., concur.
Willard, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20080
March 27, 1923
Intestate estate of the deceased GERONIMA UY COQUE.
JUAN NAVAS L. SIOCA, petitioner-appellant,
vs.
JOSE GARCIA, administrator-appellee.
Romualdez Bros. and Pedro C. Mendiola for appellant. Ruperto
Kapunan for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of
Samar, dated November 11, 1922, and appointing Jose Garcia,
administrator of the estate of the deceased Geronima Uy Coque.
The appellant is the surviving spouse of the deceased and
maintains that the court erred in not appointing him administrator
instead of Jose Garcia. As the refusal to appoint the appellant
appears in an order of the court below dated September 30, 1922,
from which no appeal has been taken, we might well consider the
question raised upon this appeal res adjudicata. For the
satisfaction of counsel, we shall, however, briefly state another
reason why the appeal must fail.
It is well settled that a probate court cannot arbitrarily and without
sufficient reason disregard the preferential rights of the surviving
spouse to the administration of the estate of the deceased
spouse. But, if the person enjoying such preferential rights is
unsuitable, the court may appoint another person. (Paragraph 2 of
sec. 642 of the Code of Civil Procedure.) The determination of a
person's suitability for the office of administrator rests, to a great
extent, in the sound judgment of the court exercising the power of
appointment and such judgment will not be interfered with on
appeal unless it appears affirmatively that the court below was in

error.
In the present case the court based its ruling on the fact that it
appeared from the record in Civil Case No. 1041 of the same
court, that the appellant had adverse interest in the estate of such
a character as to render him unsuitable as administrator.
Unsuitableness may consist in adverse interest of some kind or
hostility to those immediately interested in the estate. (18 Cyc.,
93, 94.) The court below therefore stated facts which may
constitute sufficient grounds for setting aside the appellant's
preferential rights and which, in the absence of proof to the
contrary, must be presumed sufficient. Whether they are in fact
sufficient, we are not in position to determine as we have not
before us the record in the aforesaid case No. 1041; it being a
record of the court below, that court could properly take judicial
notice thereof, but we cannot.
The order appealed from is affirmed, with the costs against the
appellant. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, and Johns,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-43594
February 8, 1937
In re Estate of the deceased Mons. Juan Bautista Perfecto
Gorordo. FATHER EMILIANO MERCADO, petitioner-appellee,
vs.
MARIA GORORDO VIUDA DE JAEN, TELESFORA JAEN, and
CESAREA GORORDO DE REVILLES, oppositors-appellants.
Jose V. Muaa and Gutierrez Repide and Monzon for
appellants. Gabino R. Veloso and Hipolito Alo for appellee.
DIAZ, J.:
Monsignor Juan Bautista Perfecto Gorordo, retired Bishop of
Cebu, died in Cebu on December 20, 1934. He left a will
instituting his sister, Maria Gorordo Viuda de Jaen, as the
universal heir to his estate, and in case of her death, his nieces
Telesfora Jaen and Cesarea Gorordo Revilles. He bequeathed
part of his estate to the various persons and entities mentioned in
his will, and named Father Emiliano Mercado, parish priest of San
Nicolas, Cebu, as executor, and in the absence of the latter
Father Alejandro Espina, parish priest of the Cebu Cathedral. The
will of the deceased bishop was probated without opposition and
consequently the Court of First Instance of Cebu confirmed the
appointment of Father Emiliano Mercado as executor after the
latter filed a bond of P5,000 fully in accordance with law.
The heirs Maria Gorordo Viuda de Jaen, Telesfora Jaen and
Cesarea Gorordo de Revilles instituted in the will, however,
excepted to the order of February 15, 1935, appointing Father
Emiliano Mercado as the executor, and in order to insist upon
their position to the appointment of said executor, the three heirs,
in their motion of February 23, 1935, prayed for the suspension of
said appointment and for the ad interim designation of Father
Alejandro Espina as special executor, pending decision of the
appeal which they expected to take from the order in question.
The lower court denied their motion in an order of March 4, 1935,
which they appealed from and as well as from the order of
February 15th of said years on the following grounds:
I. The lower court erred in overruling the opposition of the heirs of
the deceased to the appointment of the executor.
II. The lower court erred in not holding that the executor's
confirmation was unnecessary, since there were no debts and
their heirs were all of age and willing to pay or secure the
payment of the legacies.
III. The court below erred in overruling the appellants' objections
to the appearance of Attorneys Veloso and Alo as counsel for the
executor and the estate.
IV. The court below erred in denying the appellants' motion to
suspend the appointment of the executor pending the appeal.

20
The appellants' opposition to the appointment of Father Mercado
was based on his alleged unfitness and incapacity to discharge
the duties of executor for the following reasons: (1) That
notwithstanding the appellants' opposition, he contracted the
services of Attorneys Hipolito Alo and Gabino R. Veloso to
represent him in these proceedings for the sole purpose of
repaying the obligations he owed said Attorney Alo; (2) that he
cannot be impartial as executor because the church of San
Nicolas of which he is parish priest is one of the legatees named
in the will. It being natural that as such parish priest he would
favor the interests of his parish to those of the heir and the other
legatees, and above all, he is related to some of the legatees; (3)
that as the estate has no debts and the heirs instituted in the will
are all of age and are willing, according to them, to secure
payment of all the legacies, there is no necessity of making the
estate incur such unnecessary expenses as the executor's fees
and expenses and his attorneys' fees; (4) that the appellants are
better able to protect the interests of the estate; and (5) that
Attorney Margarito E. Revilles, married to the heir Cesarea
Gorordo, is willing to render professional services to the estate
free of charge.
The reasons advanced by the appellants do not seem to carry
sufficient weight to warrant the reversal of the appealed orders.
When the retired bishop Monsignor Juan Bautista Perfecto
Gorordo chose Father Emiliano Mercado as executor and
administrator of his estate after his death, he must have had good
and sufficient reasons therefore, and his will must be respected.
The evidence shows that when the deceased bishop made his will
naming said priest in preference to anybody else, he was in the
full enjoyment of his intellectual faculties. Under the
circumstances, it is not only just but also right to fully comply with
his last will; and this is precisely what the lower court did in
confirming the appointment of Father Mercado as executor
herein. As a matter of fact, section 641 of Act No. 190 provides
that when a will has been probed and allowed, the court is bound
to issue letters testamentary thereon to the person named as
executor therein provided he accepts the trust and gives the bond
as required by law, which Father Emiliano Mercado certainly did
willingly before assuming his trust. While it is true, as the
appellants contend, that this provision of the law should not be
strictly interpreted because the court would be deprived of its
power not to appoint, in certain cases, one who is unworthy of the
trust, notwithstanding the fact that he was named as such by the
testator (sec. 653, Act No. 190); it is also true that in order to do
this, the unworthiness, incapacity, ineptitude and unfitness of
such person must be manifest and real and not merely imaginary.
What acts committed by Father Mercado argue against this
capacity? The appellants allege as one of them his having
engaged the services of Attorney Alo, to whom he is under
obligation, in order to be able to repay him in some way not with
his own money but with the money of the estate, thereby
insinuating that he lacks the interest which a good executor must
have for the protection of the rights and interest of the estate
entrusted to him. The evidence relative to this matter shows that
Attorneys Hipolito Alo and Gabino R. Veloso were engaged by
Father Emiliano Mercado not as attorneys for the estate but as his
own, in his capacity as petitioner for the probate of the will of
Bishop Monsignor Juan Bautista Perfecto Gorordo. It shows
further that the special agreement he had with said attorneys
(Exhibit 3) was to the effect that their fees would only be that
determined and fixed by the court.
On the other hand, the alleged favors owed by Father Mercado to
Attorney Alo are those inferred from the following except from the
record:
Q. Is it true that you owe Attorney Alo favors? A. Properly they
are not favors, but of course, Mr. Alo has been one whom we
might call the mediator ( puente deplata) between the
parishioners of San Nicolas and myself. Thanks to his
intervention, many misunderstandings have been dissipated.
(Testimony of Father Mercado, t.s.n., page 35.)

The reason which induced Father Mercado to engage the

services of attorneys Alo and Veloso is, according to his own
testimony, that he has confidence in them (t.s.n., page 34); and
explaining why he had confidence particularly in Attorney Alo, in
answer to a question propounded to him to that effect, he stated:
A. Do you think it excessive to engage the services of a lawyer
who has your full confidence? Furthermore, speaking to Mr. Alo in
private, specifying the services rendered by him, I had the
occasion to consult him regarding some cases and without any
hesitation he told me: "Do not go ahead with that case because
you are wrong." Thus I have found out that he is an upright and
impartial man. (T.s.n., p. 32.).
This, together with the fact that up to the present Father Mercado
has not jeopardized the interests of the estate, as the lower court
has yet to decide whether his attorneys' fees should be borne by
him or by the estate, as well as the amount thereof, show that the
first question raised by the appellants is unfounded.
The appellants' allegation that Father Mercado cannot be
impartial as executor because the church of which he is the parish
priest is to receive a legacy of P10,000 under the will, is
untenable. His parish is not a legatee as all that the will provides
with respect to said sum of P10,000 is as follows:
To the poor of Cebu, Opon, and San Nicolas, I bequeath ten
thousand pesos (P10,000) under the administration and at the
discretion of whomsoever may be the Most Reverend Bishop of
the Diocese.
The foregoing provision does not give Father Mercado as
executor, even the right to intervene in the distribution and
disposition of the funds in question.
The appellants' proposition not to name any executor to save the
estate unnecessary expenses, as the testator left no debts and
the heirs on the other hand, are willing to secure payment of the
legacies, is untenable. The will contains so many provisions, there
are so many legacies to deliver and pay, and it is premature to
assert that the estate has no obligation or debt to pay, because,
on the contrary, it appears that it has debts and obligations as
shown by the committee's report of August 29, 1935, that claims
amounting to approximately P40,00 have been filed, that it is
absolutely necessary to have an executor to take charge of the
estate so as to protect the interests thereof and later enforce
compliance with the will of the testator.
The appellants' last proposition that they and Attorney Margarito
E. Revilles the latter being the husband of the appellant
Cesarea Gorordo could look after the interests of the estate
better than Father Mercado and attorneys Alo and Veloso, is
likewise untenable. The estate in their hands would be no more
immune from irregularities, and the interests of the legatees
amounting to more than those of the heirs would not be better
taken care of because of what may be inferred from the incident
which took place during the preparation of the inventory of the
estate left by the testator. Said incident may be inferred from the
following excerpt from the record:
Q. You said that you did not wish to engage the services of
Attorney Revilles because, as a member of the family he may not
be impartial. Since when did you have such opinion? A. I have
formed this opinion in view of the fact that when we were
preparing the inventory, there appeared therein shares of the
Monte de Piedad which, according to Mr. Revilles, should not be
included in the inventory because they were not in the writ. I said
"Even the last pin found in the safe will appear in the inventory."
(Testimony of Father Mercado, t. s. n., P. 32.)
For the foregoing reasons, the appellants' appeal is declared
unfounded and is, therefore, dismissed, affirming the order
appealed from with costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Laurel and
Concepcion, JJ., concur.

G.R. No. L-5436, Ozaeta et al. v. Pecson and BPI, 93 Phil. 416
content follows

21
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
June 30, 1953
G.R. No. L-5436
ROMAN OZAETA, ROSA GONZALES VDA. DE PALANCA,
JUSTO G. PALANCA, LEONARDA PALANCA DE ARANAS,
SEVERINA G. PALANCA, CARLOS PALANCA, JR., ANTONIO
G. PALANCA, MACARIO G. PALANCA, MILAGROS PALANCA
DE FURER, and RAMON G. PALANCA, petitioners,
vs.
HONORABLE POTENCIANO PECSON, Judge of First Instance
of Manila, and BANK OF THE PHILIPPINE ISLANDS,
respondents.
Roxas, Lichauco, Picazo and Manuel S. San Jose for
petitioners. Sebastian C. Palanca in his own behalf. Sison,
Arguego and Sison for investors.
LABRADOR, J.:
The question posed by the petition filed in this case is: Does a
probate court commit an abuse of discretion if, pending an appeal
against its order or judgment admitting a will to probate and
appointing as judicial administrator the person named therein as
executor, it appoints as special administrator any person other
than the executor named in the will?
The facts giving rise to the question may be briefly summarized
as follows: Carlos Palanca died on September 2, 1950; leaving a
will executed by him on May 19, 1945. In the will petitioner
Roman Ozaeta, former associate justice of this Court, was named
executor if General Manuel A. Roxas fails to qualify. Upon
Palanca's death, and General Roxas having died previously,
petitioner presented a petition for the probate of the will, at the
same time praying that he be appointed special administrator.
Some of the heirs of the decedent opposed this petition, and the
court on October 6, 1950, appointed the Philippine Trust
Company, a non-applicant and a stranger to the proceedings,
special administrator. On April 20, 1951, the Philippine Trust
Company presented a petition to resign as special administrator
on the ground of incompatibility of interest, as it had granted a
loan to heir Angel Palanca, who had pledged to it shares of the
Far Eastern University allegedly belonging to the estate of the
deceased. Thereupon petitioner reiterated his previous petition,
but the court appointed Sebastian Palanca, one of the heirs, to
take the place of the Philippine Trust Company. The order is
dated June 30, 1951. But on October 23rd, the court rendered an
order admitting the will to probate and appointing petitioner as
administrator. The order reads thus:
In view of all the foregoing, the court declares that the document
which was executed by the testator on May 19, 1945 (Exhibit D),
is the last will of Carlos Palanca Tanguinlay, and its probate is
hereby allowed. The court appoints the petitioner, Roman Ozaeta,
as executor, with a bond of P50,000 with sufficient sureties and
subject to the approval by this court. Once this decision has
become final and upon the approval of the said bond and the
taking of the oath of office, let letters testamentary issue
accordingly. With costs against the oppositors.
And on October 25, 1951, the court allowed the Philippine Trust
Company to resign, reconsidered its order appointing Sebastian
Palanca special administrator, and appointed instead the Bank of
the Philippine Islands. Petitioner moved to reconsider the order,
but his motion was denied, and thereupon the present petition
was filed. In its order the court held that it has discretion to
choose the special administrator and is not bound to appoint the
person named therein as executor, because the order had been
appealed.
Petitioner claims that the reason why the respondent judge does
not appoint him special administrator is his personal dislike for
him, and that the reasons given by the judge in not appointing
him, namely, alleged partiality to one group of heirs, less ability
and experience in handling estates as the appointees the

previous and the subsequent one are not actually the reasons
that impelled him to deny petitioner's appointment. On the other
hand, intervenors Maria Cuartero, et al., (a group of heirs), claim
that petitioner had close personal relations with Rosa Gonzales
(second wife of deceased) and her children, acting as sponsor in
her marriage with the deceased, obtaining a loan from her family,
etc. We have overlooked all the personal grounds or reasons
given by the parties, and have chosen to decide the issue from a
purely legal point of view.
It should be noted at the outset that Rule 81 of the Rules of Court,
under the provisions of which the order appealed from was made,
grants discretion to the probate court to appoint or not to appoint
a special administrator. It is silent as to the person that may be
appointed as special administrator, unlike section 6 of Rule 79,
which expressly gives the order of preference of the persons that
may be appointed regular administrator. We have held in the case
of Roxas vs. Pecson, however, that the appointment of special
administrators is not governed by the rules regarding the
appointment of regular administrators. (Roxas vs. Pecson, 82
Phil., 407, 46 Off. Gaz. [5] 2058.) But we further held, however,
that while the choice of the person lies within the court's
discretion, such discretion should not be a whimsical one, but one
that is reasonable and logical and in accord with fundamental
legal principles and justice. The fact that a judge is granted
discretion does not authorize him to become partial, or to make
his personal likes and dislikes prevail over, or his passions to rule,
his judgment. Such discretion must be based on reason and legal
principle, and it must be exercised within the limits thereof. And
there is no reason why the same fundamental and legal principles
governing the choice of a regular administrator should not be
taken into account in the appointment of the special administrator.
The choice of his executor is a precious prerogative of a testator,
a necessary concomitant of his right to dispose of his property in
the manner he wishes. It is natural that the testator should desire
to appoint one of his confidence, one who can be trusted to carry
out his wishes in the disposal of the estate. The curtailment of this
right may be considered as a curtailment of the right to dispose.
And as the rights granted by will take effect from the time of death
(Article 777, Civil Code of the Philippines), the management of his
estate by the administrator of his choice should be made as soon
as practicable, when no reasonable objection to his assumption of
the trust can be interposed any longer. It has been held that when
a will has been admitted to probate, it is the duty of the court to
issue letters testamentary to the person named as executor upon
his application (23 C.J. 1023). It is the testator that appoints his
executor, as the question as to his peculiar fitness for such a
position or his want of ability to manage the estate can not be
addressed to the discretion of the county judge. (Holbrook vs.
Head, 6 S.W. 592, 593, 9 Ky. 755.)
In the case at bar, the will has already been admitted to probate,
and respondent judge himself has expressly appointed petitioner
as administrator. The only reason or ground, therefore, for
suspending his appointment, and for the appointment of a special
administrator, who is not the petitioner himself, is a very technical
one. It also appears that the Philippine Trust Company, which had
acted as special administrator for a period of only a few months,
has submitted a bill for P90,000. This would cut deep into the
income of the estate, and if the new special administrator
appointed by the respondent judge takes office, it is not
improbable that the estate may again be subjected to the same
expensive cost of administration. Under these circumstances, it
would seem unreasonable to refuse to appoint the petitioner as
special administrator. To do so would be delaying the fulfillment of
the wishes of the testator and subjecting the estate to
unnecessary expense. Petitioner has cited precedents in the
surrogate courts of the State of New York to support his claim that
as the will appointing him regular administrator has been admitted
to probate by the trial judge, he should now be appointed special
administrator during the pendency of the appeal against the order
admitting the will to probate. In the case of In re Shonts' Estate,

22
178 N.Y.S. 762, 767-768, the judge makes the following very
pertinent remarks:
. . . . It is my firm belief that the appointment of the executors
named in a will as temporary administrators during contested
probates is not only more economical for suitors and estates in
ninety-nine cases of a hundred, but more consonant with the
dignity of a court of this character. The intrusion of nominees of
the court, strangers to the dead, very distasteful to the inhabitants
of this state, should be as rare as possible in this court if people of
property are to continue to feel as ease and in security in this
state.
The case of In re Erlanger's Estate, 242 N.Y.S. 249, also
reiterates the same principle.
The courts have always respected the right to which a testator
enjoys to determine who is most suitable to settle his
testamentary affairs, and his solemn selection should not lightly
be disregarded. After the admission of a will to probate, the courts
will not name a better executor for the testator nor disqualify, by a
judicial veto, the widow or friend or other person selected in the
will, except upon strict proof of the statutory grounds of
incompetency. Matter of Leland's Will, 219 N.Y. 387, 393, 114
N.E. 854. For the foregoing reasons the person selected by the
testator in three successive wills will be appointed. (Pages 254255).
The claimant's principal objection to the selection of Mr. Baron as
temporary administrator is founded upon her charge that he
exercised undue influence upon the testator in the drafting of the
will offered for probate here. She also stresses his personal
hostility to her. In my opinion, and in view of the special
circumstances of this case, these considerations do not constitute
a disqualification. Matter of Hilton's Will, 29 Misc. Rep. 532, 61
N.Y.S. 1073; Jessup-Redfield Surrogate's Courts, 6th Edit., page
743; Matter of Robert, N.Y. Law Journal, January 9th, 1912;
Matter of Ashmore's Estate, 48 Misc. Rep. 312, 96 N.Y.S. 772.
He receives no legacy under the will. He is an attorney of long
experience and his professional standing is attested by several
affiants. In addition to the fact that he was selected by Mr.
Erlanger as executor in three wills, it appears from several
affidavits that he was for a long period of time intimately
associated with Mr. Erlanger. This association not only involved a
personal friendship, but also the relationship of Mr. Baron as
lawyer and Mr. Erlanger as client. It involved also knowledge of
Mr. Erlanger's financial transactions, and, in addition, a close
business contact with Mr. Erlanger's various enterprises. Mr.
Baron was an officer or director of over thirty corporations through
which Mr. Erlanger's various activities were conducted. He held
powers of attorney from him in the last years of Mr. Erlanger's life.
He is qualified, therefore, by this experience to safeguard the
estate as temporary administrator. (Pages 252-253).
The writ prayed for is, therefore, granted, the appealed order
reversed, and the temporary injunction issued by the court made
absolute. Let temporary letters of administration be issued in favor
of petitioner during the pendency of the appeal from the order
admitting the will to probate.
Paras, C.J., Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo
and Bautista Angelo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-46320
October 5, 1939
Intestate estate of the deceased Proceso de Guzman.
NICOLASA DE GUZMAN, petitioner-appellee,
vs.
ANGELA LIMCOLIOC, oppositor-appellant.
Camus and Zavalla for appellant. Arsenio Santos for appellee.
VILLA-REAL, J.:

This is na appeal taken by the oppositor Angela Limcolioc from

the order of the Court of First Instance of Rizal, dated March 30,
1938, the dispositive part of which reads as follows:
It is hereby ordered that Apolinario de Guzman be, as he is
hereby, appointed co-administrator of the estate of the deceased
upon filing a bond in the sum of P5,000 with two or more sufficient
sureties to the satisfaction of the Court. The co-administrator will
not be entitled to receive compensation for his services.
In the case of Nicolas de Guzman vs. Angela Limcolioc, G.R. No.
46134, wherein the parties are the same as those in this case,
this court, in a judgment rendered on April 18, 1939, stated as
follows:
The principal consideration reckoned with in the appointment of
the administrator of the estate of a deceased person is the
interest in said estate of the one be appointed as such
administrator. This is the same consideration which the law takes
into account in establishing the preference of the widow to
administer the estate of her husband, upon the latter's death,
because she is supposed to have an interest therein as a partner
in the conjugal partnership. But this preference established by law
is not absolute, if there are other reasons justifying the
appointment of an administrator other than the surviving spouse.
If the interest in the estate is what principally determines the
preference in the appointment of an administrator of the estate of
a deceased person, and if, under the circumstances of each case,
it develops that there is another who has more interest therein
than the surviving spouse, the preference established in the
latter's favor falls to the ground.
The same reasons are applicable to the case under
consideration, inasmuch as the appointed co-administrator,
Apolinario de Guzman as brother of Nicolasa de Guzman
whom the latter needs to help her in the administration of the
properties left by their deceased father, many of which consist in
fisheries situated in the provinces is as interested as his sister
in that said properties be duly administered and conserved for the
benefit of the heirs. It is true that Apolinario de Guzman's father,
Proceso de Guzman, in life, filed a complaint against his son on
the ground that the latter, as administrator of his father's estate,
misappropriated from P12,000 to P15,000 to buy a fishery, a De
Soto sedan, and a duck farm in Los Baos, and loaned money
and made deposits in the Philippine National Bank, but said
complaint was dismissed at the instance of the father himself. In
the present case, aside from the fact that Apolinario de Guzman,
as co-administrator, will administer properties in which he has a
greater share than that of the oppositor, the childless widow of the
deceased by a second marriage, and will act merely as a helper
of his sister, there is no ground to believe that he would squander
said properties and the products thereof. The lower court having
been of the opinion that Apolinario de Guzman deserves
appointment of co-administrator, and it being discretionary on its
part to determine who should be appointed administrator of the
properties of a deceased person, we believe it unjustified for us to
meddle in the exercise of such discretion, it not appearing that
said court has committed a grave abuse thereof (Esler and Tad-Y
vs. Tad-Y and Locsin, 46 Phil., 854; Navas L. Sioca vs. Garcia, 44
Phil., 711).lwphi1.nt
Wherefore, not finding any error in the order appealed from, it is
affirmed in toto, with the costs to the appellant. So ordered.
Avancea, C.J., Imperial, Diaz, Laurel, Concepcion, and Moran,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 74769 September 28, 1990
BEATRIZ F. GONZALES, petitioner,
vs.
HON. ZOILO AGUINALDO, Judge of Regional Trial Court,

23
Branch 143, Makati, Metro Manila and TERESA F. OLBES,
respondents.
Andres V. Maglipon for petitioner.
Sycip, Salazar, Hernandez & Gatmaitan for private respondent.
PADILLA, J.:
This is a petition for certiorari which seeks to annul, on the ground
of grave abuse of discretion, the Order of the respondent Judge,
dated 15 January 1985, cancelling the appointment of the
petitioner Beatriz F. Gonzales as a co-administratrix in Special
Proceedings No. 021 entitled "In the Matter of the Intestate Estate
of Ramona Gonzales Vda. de Favis," Branch 143, RTC, Makati,
Metro Manila; and the Order of 15 May 1985 denying
reconsideration of the same.
The facts are:
Special Proceedings No. 021, pending before the court a quo, is
an intestate proceeding involving the estate of the deceased
Doa Ramona Gonzales Vda. de Favis. Doa Ramona is
survived by her four (4) children who are her only heirs, namely,
Asterio Favis, Beatriz F. Gonzales, Teresa F. Olbes, and Cecilia
Favis-Gomez.
On 25 October 1983, the court a quo appointed petitioner Beatriz
F. Gonzales and private respondent Teresa Olbes as coadministratices of the estate.
On 11 November 1984, while petitioner Beatriz F. Gonzales was
in the United States accompanying her ailing husband who was
receiving medical treatment in that country, private respondent
Teresa Olbes filed a motion, dated 26 November 1984, to remove
Beatriz F. Gonzales as co-administratrix, on the ground that she
is incapable or unsuitable to discharge the trust and had
committed acts and omissions detrimental to the interest of the
estate and the heirs. Copy of said motion was served upon
petitioner's then counsel of record, Atty. Manuel Castro who,
since 2 June 1984, had been suspended by the Supreme Court
from the practice of law throughout the Philippines. 1
After the filing of private respondent's aforesaid motion,
respondent Judge Zoilo Aguinaldo issued an Order dated 4
December 1984 which required Beatriz F. Gonzales and the other
parties to file their opposition, if any, thereto. Only Asterio Favis
opposed the removal of Beatriz F. Gonzales as co-administratrix,
as the latter was still in the United States attending to her ailing
husband.
In an Order dated 15 January 1985, respondent Judge cancelled
the letters of administration granted to Beatriz F. Gonzales and
retained Teresa Olbes as the administratrix of the estate of the
late Ramona Gonzales. The Court, in explaining its action, stated:
. . . In appointing them, the court was of the opinion that it would
be to the best interest of the estate if two administrators who are
the children of the deceased would jointly administer the same.
Unfortunately, as events have shown, the two administrators have
not seen eye to eye with each other and most of the time they
have been at loggerheads with each other to the prejudice of the
estate. Beatriz F. Gonzales has been absent from the country
since October, 1984 as she is in the United States as stated in the
motion and opposition of Asterio Favis dated December 11, 1984,
and she has not returned even up to this date so that Teresa F.
Olbes has been left alone to administer the estate. Under these
circumstances, and in order that the estate will be administered in
an orderly and efficient manner, the court believes that there
should be now only one administrator of the estate. 2
Petitioner moved to reconsider the Order of 15 January 1985. Her
motion was opposed separately by private respondent Teresa
Olbes and another co-heir Cecilia Gomez. In her manifestation
and opposition to petitioner's motion for reconsideration, Cecilia
Gomez stated that it would be pointless to re-appoint Beatriz F.
Gonzales as co-administratrix of Teresa Olbes, as the former
would be leaving soon for the United States to attend to
unfinished business. Moreover, she expressed satisfaction with
the manner respondent Teresa Olbes had been managing and
administering the estate.

In his Order dated 7 May 1986, a part of which is hereunder

quoted, respondent Judge denied petitioner's motion for
reconsideration for lack of merit. He said:
xxx xxx xxx
After a consideration of the motion for reconsideration and the
oppositions thereto, the court believes and so holds that it should
be denied. The court in its discretion has issued its order dated
January 15, 1985 cancelling the appointment and the letters of
administration issued to Beatriz F. Gonzales and it reiterates the
same for the best interest of the estate of the deceased. It is
noteworthy that of the four heirs of the deceased, one of them
being the movant Beatriz F. Gonzales, two of them, namely,
Cecilia F. Gomez and Teresa F. Olbes, opposed the motion. The
other heir Asterio Favis, did not file or make any comment to the
motion. As can be gathered from the oppositions of Cecilia F.
Gomez and Teresa F. Olbes, the reappointment of Beatriz F.
Gonzales as a co-administratrix would not be conducive to the
efficient and orderly administration of the estate of the deceased
Ramona Gonzales vda. de Favis. 3
Petitioner contends before this Court that respondent Judge's
Order dated 15 January 1985 should be nullified on the ground of
grave abuse of discretion, as her removal was not shown by
respondents to be anchored on any of the grounds provided
under Section 2, Rule 82, Rules of Court, which states:
Sec. 2. Court may remove or accept resignation of executor or
administrator. Proceedings upon death, resignation or removal
If an executor or administrator neglects to render his account and
settle the estate according to law, or to perform an order or
judgment of the court, or a duty expressly provided by these rules,
or absconds, or becomes insane, or otherwise incapable or
unsuitable to discharge the trust, the court may remove him, or in
its discretion, may permit him to resign. . . .
While appellate courts are generally disinclined to interfere with
the action taken by the probate court in the matter of removal of
an administrator, 4 we find, in the case at bar, sufficient cause to
reverse the order of the probate court removing petitioner as coadministratrix of the estate.
The rule is that if no executor is named in the will, or the named
executor or executors are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate, the court must appoint an
administrator of the estate of the deceased 5 who shall act as
representative not only of the court appointing him but also of the
heirs and the creditors of the estate. 6 In the exercise of its
discretion, the probate court may appoint one, two or more coadministrators to have the benefit of their judgment and perhaps
at all times to have different interests represented. 7
In the appointment of the administrator of the estate of a
deceased person, the principal consideration reckoned with is the
interest in said estate of the one to be appointed as administrator.
8
This is the same consideration which Section 6 of Rule 78 takes
into account in establishing the order of preference in the
appointment of administrators for the estate. The underlying
assumption behind this rule is that those who will reap the benefit
of a wise, speedy, economical administration of the estate, or, on
the other hand, suffer the consequences of waste, improvidence
or mismanagement, have the highest interest and most influential
motive to administer the estate correctly. 9
Administrators have such an interest in the execution of their trust
as entitle them to protection from removal without just cause. 10
Hence, Section 2 of Rule 82 of the Rules of Court provides the
legal and specific causes authorizing the court to remove an
administrator. 11
While it is conceded that the court is invested with ample
discretion in the removal of an administrator, it however must
have some fact legally before it in order to justify a removal. There
must be evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the rules or the
orders of the court, which it deems sufficient or substantial to
warrant the removal of the administrator. In making such a
determination, the court must exercise good judgment, guided by

24
law and precedents.
In the present case, the court a quo did not base the removal of
the petitioner as co-administratrix on any of the causes specified
in respondent's motion for relief of the petitioner. Neither did it
dwell on, nor determine the validity of the charges brought against
petitioner by respondent Olbes. The court based the removal of
the petitioner on the fact that in the administration of the estate,
conflicts and misunderstandings have existed between petitioner
and respondent Teresa Olbes which allegedly have prejudiced
the estate, and the added circumstance that petitioner had been
absent from the country since October 1984, and up to 15
January 1985, the date of the questioned order.
Certainly, it is desirable that the administration of the deceased's
estate be marked with harmonious relations between coadministrators. But for mere disagreements between such joint
fiduciaries, without misconduct, one's removal is not favored. 12
Conflicts of opinion and judgment naturally, and, perhaps
inevitably, occur between persons with different interests in the
same estate. Such conflicts, if unresolved by the coadministrators, can be resolved by the probate court to the best
interest of the estate and its heirs.
We, like petitioner, find of material importance the fact that the
court a quo failed to find hard facts showing that the conflict and
disharmony between the two (2) co-administratrices were unjustly
caused by petitioner, or that petitioner was guilty of incompetence
in the fulfillment of her duties, or prevented the management of
the estate according to the dictates of prudence, or any other act
or omission showing that her continuance as co-administratrix of
the estate materially endangers the interests of the estate.
Petitioner Beatriz F. Gonzales is as interested as respondent
Olbes and the other heirs in that the properties of the estate be
duly administered and conserved for the benefit of the heirs; and
there is as yet no ground to believe that she has prejudiced or is
out to prejudice said estate to warrant the probate court into
removing petitioner as co-administratrix.
Respondent Judge removed petitioner Beatriz F. Gonzales as coadministratrix of the estate also on the ground that she had been
absent from the country since October 1984 and had not returned
as of 15 January 1985, the date of the questioned order, leaving
respondent Olbes alone to administer the estate.
In her motion for reconsideration of the Order dated 15 January
1985, petitioner explained to the court a quo that her absence
from the country was due to the fact that she had to accompany
her ailing husband to the United States for medical treatment. 13 It
appears too that petitioner's absence from the country was known
to respondent Olbes, and that the latter and petitioner Gonzales
had continually maintained correspondence with each other with
respect to the administration of the estate during the petitioner's
absence from the country. 14 As a matter of fact, petitioner, while
in the United States, sent respondent Olbes a letter addressed to
the Land Bank of the Philippines dated 14 November 1984, and
duly authenticated by the Philippine Consulate in San Francisco,
authorizing her (Olbes) to receive, and collect the interests
accruing from the Land Bank bonds belonging to the estate, and
to use them for the payment of accounts necessary for the
operation of the administration. 15
The above facts, we note, show that petitioner had never
abandoned her role as co-administratrix of the estate nor had she
been remiss in the fullfilment of her duties. Suffice it to state,
temporary absence in the state does not disqualify one to be an
administrator of the estate. Thus, as held in re Mc Knight's Will, a
temporary residence outside of the state, maintained for the
benefit of the health of the executors' family, is not such a
removal from the state as to necessitate his removal as executor.
. . . It seems quite clear that a temporary absence from the state
on account of ill health, or on account of business or for purposes
of travel or pleasure, would not necessarily establish the fact that
an executor "has removed" from the estate, within the intent of the
statute. The learned surrogate was evidently satisfied that the
sojourn of these executors in New Jersey was nothing more than

a departure from the state for the benefit of relatives, not

designed to constitute a permanent change of abode, and
contemplating a return to New York as soon as the purpose of
their absence should be accomplished. In this view, I am inclined
to think that he was right in refusing to hold that he was
constrained to revoke the letters by the provisions of the Code to
which I have referred. I therefore advise an affirmance of the
order. 16
Finally, it seems that the court a quo seeks refuge in the fact that
two (2) of the other three (3) heirs of the estate of the deceased
(Teresa Olbes and Cecilia Favis Gomez) have opposed the
retention or re-appointment of petitioner as co-administratrix of
the estate. Suffice it to state that the removal of an administrator
does not lie on the whims, caprices and dictates of the heirs or
beneficiaries of the estate, nor on the belief of the court that it
would result in orderly and efficient administration. In re William's
Adm'r., the court held:
A county court having appointed a stranger administrator as
expressly authorized by Ky. St. 3897, after the relatives of
decedent had lost their right of precedence, could not remove the
appointee merely because of the request of relatives and the
belief upon the part of the court that the best interest of deceased
would be thereby subserved, since the administrator had such an
interest as entitled him to protection from removal without cause.
17

As the appointment of petitioner Beatriz F. Gonzales was valid,

and no satisfactory cause for her removal was shown, the court a
quo gravely abused its discretion in removing her. Stated
differently, petitioner Beatriz F. Gonzales was removed without
just cause. Her removal was therefore improper.
WHEREFORE, the petition is GRANTED. The Order of the court
a quo dated 15 January 1985 removing petitioner Beatriz F.
Gonzales as co-administratrix in Special Proceedings No. 021,
entitled "In the Matter of the Intestate Estate of Ramona Gonzales
Vda. de Favis" and the Order of the same Court dated 15 May
1985 denying reconsideration of said Order, are hereby
REVERSED and SET ASIDE. Petitioner is ordered reinstated as
co-administratrix of said estate.
SO ORDERED.
Melencio-Herrera (Chairman), Sarmiento and Regalado, JJ.,
concur.
Paras, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 18600
March 9, 1922
B. E. JOHANNES, husband of Carmen Theodora Johannes,
deceased, as a administrator; CARLOS D'ALMEIDA and IDA
JOHANNES, with her husband, J. E. JOHANNES, relators,
vs.
Honorable GEORGE R. HARVEY, as judge of First Instance of
Manila, ALFREDO D'ALMEIDA, brother of Carmen Johannes,
as administrator, and PHILIPPINE TRUST COMPANY, as late
guardian for a certain cash deposit of Carmen Johannes,
respondent.
Amzi B. Kelly for relators. Fisher & Dewitt and Francis B.
Mahoney for respondents.
MALCOLM, J.:
The relevant facts disclosed by this petition for certiorari and the
return thereto may be stated as follows:
Mrs. Carmen Theodora Johannes nee Carmen D'Almeida, died
intestate in Singapore, Straits Settlements, on August 31, 1921.
Of her immediate family there remained the husband, B. E.
Johannes, the brothers, Frederick Charles D'Almeida and Alfred
D'Almeida, and the sister, Ida D'Almeida Johannes. Of these, the
husband, the brother Frederick, and the sister Ida, were residents
of Singapore, while the brother Alfred was in Manila. The

25
Singapore heirs apparently joined in asking that letters of
administration be granted by the Supreme Court of the Straits
Settlements to B. E. Johannes, the lawful husband of the
deceased. At least, on September 19, 1921, the husband of the
deceased. At least, on September 19, 1921, the husband was
named the administrator of the property of the deceased wife,
which was locally situate within the jurisdiction of the Supreme
Court of the Straits Settlements. (Under the British law [22 & 23
Charles II c 10, 29 Charles II c 3, and James II c 17], it would
seem that the husband is entitled to the whole of the estate of his
wife if she die intestate to the exclusive of any other next of kin.)
On October 1, 1921, the brother Alfred D' Almeida was, on his
petition, appointed administrator of the Manila estate of the
deceased consisting of P109,732.55. This sum it appears, was on
deposit in the Manila banks under and by virtue of guardianship
proceedings for the late Carmen Theodora Johannes, which were
finally terminated by the discharge of the guardian, the Philippine
Trust Company, on January 16, 1922.
The burden of the relator's contention is that the Honorable
George R. Harvey, as judge of First Instance of the City of Manila,
has acted in excess of his jurisdiction in appointing Alfred
D'Almeida administrator of the funds of the estate on deposit in
the Philippines, and that an administration in the jurisdiction is
unnecessary. Accordingly, relators pray the court to annul the
appointment of Alfred D'Almeida and to issue an order directing
the Judge of First Instance to have placed to the credit of B. E.
Johannes as administrator of the estate of Carmen Theodora
Johannes all of the funds of the late Carmen D'Almeida
Johannes, now on deposit and subject to the order of the court,
with P5,000 as damages. The respondents, Judge Harvey, and
the administrator Alfred D'Almeida, in compliance with the order
to show cause why the writ should not issue, contend that the
respondent judge has not in any manner acted in excess of the
jurisdiction duly conferred upon and exercised by him in the
manner provided by law, and that an order appointing an
administrator is a final and appealable order.
Certain general observations may possibly serve to clarify the
situation.
It is often necessary to have more than one administration of an
estate. When a person dies intestate owning property in the
country of his domicile as well as in a foreign country,
administration is had in both countries. That which is granted in
the jurisdiction of decedent's last domicile is termed the principal
administration, while any other administration is termed the
ancillary administration. The reason for the latter is because a
grant of administration does not ex proprio vigore have any effect
beyond the limits of the country in which it is granted. Hence, an
administrator appointed in a foreign state has no authority in the
United States. The ancillary administration is proper, whenever a
person dies, leaving in a country other than that of his las
domicile, property to be administered in the nature of assets of
the decedent, liable for his individual debts or to be distributed
among his heirs. (23 C. J., 1010, et seq.; 24 C. J., 1109, et seq.;
Wilkins vs. Ellett [1882], 108 U. S., 256; Perez vs. Aguerria
[1901], 1 Porto Rico Fed., 443; Vaughn vs. Barret [1833], 5 Vt.,
333.)
The principal administration in this instance is that at the domicile
of the late Carmen Theodora Johannes in Singapore, Straits
Settlements. What is sought in the Philippine Islands is an
ancillary
administration
subsidiary
to
the
domiciliary
administration, conformable to the provisions of sections 601,
602, and 603 of the Code of Civil Procedure. The proper course
of procedure would be for the ancillary administrator to pay the
claims of creditors, if there be any, settle the accounts, and remit
the surplus to the domiciliary jurisdiction, for distribution among
the next of kin. Such administration appears to be required in this
jurisdiction since the provisions of section 596 of the Code of Civil
Procedure, which permit of the settlement of certain estates
without legal proceedings, have not been met. The decision of
this court in Baldemor vs. Malangyaon ([1916]), 34 Phil., 368), on

which relators rely, is then not in point because predicated directly

on the provisions of the section last cited.
It is almost a universal rule to give the surviving spouse a
preference when an administrator is to be appointed, unless for
strong reasons it is deemed advisable to name someone else.
This preference has particular force under Spanish law
precedents. (4 Escriche, Diccionario de Legislacion y
Jurisprudencia, 1085.) However, the Code of Civil Procedure, in
section 642, while naming the surviving husband or wife, as the
case may be, as one to whom administration can be granted,
leaves this to the discretion of the court to determine, for it may be
found that the surviving spouse is unsuitable for the responsibility.
Moreover, nonresidence is a factor to be considered in
determining the propriety of the appointment, and in this
connection, it is to be noted that the husband of the deceased, the
administrator of the principal administration, resides in Singapore.
Undoubtedly, if the husband should come into this jurisdiction, the
court would give consideration to this petition that he be named
the ancillary administrator for local purposes. Ancillary letters
should ordinarily be granted to the domicilliary representative, if
he applies therefor, or to his nominee, or attorney; but in the
absence of express statutory requirement the court may in its
discretion appoint some other person. (24 C. J., 1114.)
There is still another aspect to the case. This is that pursuant to
section 783 of the Code of Civil Procedure, an order of a Court of
First Instance appointing an administration of the estate of a
deceased person constitutes a final determination of the rights of
the parties thereunder, within the meaning of the statute, and is
appealable. (Sy Hong Eng vs. Sy Lioc Suy [1907], 8 Phil., 594.)
As we reach the conclusion that the Court of First Instance has
not acted in excess of its jurisdiction, and as there in an appeal,
certiorari will not lie. Accordingly, the writ prayed for cannot be
granted. Costs against the relators. So ordered.
Araullo, C.J., Street, Avancea, Villamor, Ostrand, Johns and
Romualdez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3378
August 22, 1951
TESTATE ESTATE OF THE DECEASED DAMASA
CRISOSTOMO. NAZARIO TRILLANA, administrator-appellee,
vs.
CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants.
Francisco R. Capistrano and Jesus T. Quiambao for petitioners
and appellants. Jose G. Generoso and Jose B. Bautista for
administrator and appellee.
FERIA, J.:
This is an appeal from an order of the Court of First Instance of
Bulacan denying the appellants' petition for relief from the
judgment of the said court allowing the will of October 19, 1948,
executed by the deceased Damasa Crisostomo.
The appellants, in support of their sole assignment that the lower
court erred in denying their petition for relief from the judgment of
January 5, 1949, admitting to probate the will of October 19,
1948, submits to this Court three propositions, to wit: (a) "The
judgment of January 5 was obtained through fraud," (b) "The
lower court failed to perform its legal duty to set date for proving
the will of August 16, 1948;" and (c) "The failure to set aside a
date for proving the will of August 16 with the will of October 19
was entirely due to the lower court's fault or negligence."
In support of their proposition (a), attorneys for the appellant
allege that the fraud in obtaining the judgment of January 5
consisted in that the proponents of the will of October 19 did not
cause personal notice of the hearing to be made upon the legal
heirs of the decedent, contrary to the requirement of Rule 77, sec.
4 of the Rules of Court. We can not consider now for the first time
in this appeal the question whether the lower court (not the

26
proponents) complied with the requirement of said sec. 4 of Rule
77 of the Rules of Court, for that question has not been raised by
the appellants in the court below, either in their original petition for
relief of May 12, 1949 (pp. 2-8, Record on Appeal), or in their
motion for reconsideration dated August 27, 1949, of the order
denying their petition for relief (pp. 67-71). And there being no
evidence to the contrary, the legal presumption is that the court
which probated the will of October, 19, 1948., complied with its
duty and acted in lawful exercise of its jurisdiction in probating
said will (Sec. 69 (m) (n), Rule 123 of the Rules of Court).
Besides, appellee's attorney, in the statement of facts in to the
appellants' petition for relief, stated that "This Honorable Court set
its hearing [of the petition for allowance of the will of October 19,
1948] on December 2, 1948. Copy of this order was published in
"The Star Reporter", newspaper of general circulation in Bulacan
on November 5, 12 and 19 respectively, and the corresponding
notices served by the office of the Clerk of Court, in accordance
with law" (pp. 25 26, Record on Appeal). And the attorneys for the
petitioners-appellant had not denied said statement.
The petitioners-appellants having failed to show that the judgment
of the lower court of January 5, 1948, probating the will of testatrix
of October 19, was obtained through fraud, the lower court did not
commit any error in denying the appellant's petition for relief
under sec. 2, Rule 38 of the Rules of Court, and therefore it is not
necessary for us to discuss and pass upon the other propositions
of the appellant.
Where a will is duly probated after publication pursuant to 630 of
the Code of Civil Procedure, the order admitting the will is, in the
absence of fraud, effective against an persons. The fact that an
heir or other interested party lives so far away as to make it
impossible for such party to be present at the date appointed for
the, probate of the will does not render the order of probate void
for lack of due process. (In re Estate of Johnson, 39 Phil. 156)
Besides, even assuming without deciding, that under sec. 3 of
Rule 77, the court shall set aside a date for proving a will even
without petition when it is delivered to the, court having
jurisdiction, as contended by the appellants, the lower court was
right in not setting a date for proving the will of August 16, 1948,
because this will was expressly and absolutely revoked by the will
of October 19, 1948, executed by the same executrix or
deceased, which was filed for allowance on November 1, 1948,
with the same Court of First Instance of Bulacan. According to the
attorneys for the appellant, the will dated August 16, 1948, was
sent together with a writing called "Manifestation" by registered
mail on October 30, 1948, from Manila to the Court of First
Instance of Bulacan, by Attorney Mr. Tomas V. Barnes, and said
will must have been received by the Clerk of Said Court on or
after November 1, 1948, the date when the subsequent will of
October 19, was filed for probate. It stands to reason that if two
wills are presented for allowance but one of them revoked will
cannot be included in the probate of the latter subsequent will,
because it would be a waste of time to allow the revoked will if the
subsequent revoking will is allowed. The revoked will may be
probated and allowed only if the subsequent revoking will is
disallowed. (11. McAra vs .MacCay, L. R. 23 Ir., 138; Pepper vs.
Pepper, Ir. R. 5 Eq., 85; Matter of Palmer, 58 L.J. P.D. and Adm.,
44; Matter of Stephens, 22 L.T. Rep., N.S. 727.) [68 C.J. 886]
Besides, the appellants in the present case, who merely allege in
their petition for relief that they are "nephews and nieces and
therefore legal heirs of the deceased Damasa Crisostomo,"
without specifying the degree of relationship they had the latter,
do not pretend that it if the will October 19, 1949, be disallowed,
they will inherit the estate left by the testatrix. They contend that
said will should be probated jointly or together with the will of
August 16, 1948, and the latter be allowed instead of the former.
As in her will of October 19, 1949, as well in that of August 16,
1948, the testatrix is leaving all her properties as legacies to other
persons, the appellants have no interest in the probate of said
wills, and they can not appeal from the judgment which allowed
one of them instead of the other.

Appellants argue that they are in interested parties and therefore

may appeal in the present case, because in the event the will of
October 19 is disallowed and in its that of August 16 is allowed,
and the legacies in the latter are declared invalid or the legatees
incapable to inherit, the legacies will go to appellants. This
argument has no merit. In civil actions and special proceedings,
unless otherwise provided by law, the interest in order that a
person may be a party on appeal must be material and direct, so
that he will be materially and directly benefited or injured by the
court's order, decree or judgment: and not indirect or contingent
(Espinosa vs. Barrios, 40 Off. Gaz., [8 Supp. No. 12]. p. 145). The
interest claimed by the appellants is purely contingent or
dependent upon several uncertain and future events to (1) The
disallowance of the will of October 19, 1948 (2)The allowance of
the will of August 16, 1948, and (3) invalidation of certain legacies
left in said will of August 16, 1948.
In view of all the foregoing, the order appealed from is affirmed
with costs against the appellants. So ordered.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and
Bautista Angelo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-11848
May 31, 1962
IN THE MATTER OF THE INTESTATE ESTATE OF THE
DECEASED IRENE SANTOS. JOSE D. VILLEGAS,
Administrator, ADELA SANTOS GUTIERREZ, movantappellee,
vs.
JOSE D. VILLEGAS, and RIZALINA SANTOS RIVERA,
oppositors-appellants.
Perkins and Ponce Enrile for movant-appellee. Delgado, Flores
and Macapagal for oppositors-appellants.
PAREDES, J.:
On November 11, 1954, Irene Santos died intestate, leaving as
her only heirs her surviving spouse Jose D. Villegas and two
nieces daughters of a deceased brother, Rizalina Santos
Rivera and Adela Santos Gutierrez. Thereafter, the surviving
spouse filed with the Rizal CFI, Pasay City Branch, a petition for
Letters of Administration (Sp. Proc. No. 2100), and was appointed
administrator of the estate. In the petition, he named as intestate
heirs, besides himself, Rizalina Santos Rivera and Adela Santos
Gutierrez. Under date of January 15, 1955, in the abovementioned Special Proceedings, an unverified manifestation
signed by Adela Gutierrez, accompanied by a public instrument
entitled "Kasulatan ng Bilihan at Salinan", dated January 12,
1955, was presented to the Probate Court, stating among others,
the following
The undersigned hereby solemnly manifests . . . that all her rights,
interests and participation in the estate subject of this proceeding
now belong to her sister, Rizalina Santos Rivera, and that
hereafter she will not take part in the above-entitled proceedings
and is not entitled to the service of any pleadings, motion, order or
decision filed or promulgated therein.
In a verified manifestation presented before the probate Court on
January 25, 1955, Adela averred that the deed of assignment of
her rights, participation and interest in the estate of Irene Santos
and the first manifestation were obtained thru fraud practiced by
the administrator upon her and were vitiated by mistake or undue
influence. Therein, she narrated that sometime in December,
1954, due to stringent financial conditions, she (Adela) requested
the administrator for an advance of P2,000.00 from the estate.
The administrator refused on the ground that it is against the law,
but suggested that she might obtain a loan from her sister
Rizalina, offering to help. After Christmas of 1954, the
administrator informed Adela that he was able to secure the
conformity of Rizalina to give her a loan of P10,000.00 instead of

27
only P2,000.00. When Adela expressed surprise over the amount,
the administrator replied that he only wanted to help her get
started in business. On January 12, 1955, Adela was brought by
Villegas and Rizalina to the office of their lawyer, where she was
made to sign a document she could not read. On January 13,
1955, the lawyer asked Adela to sign another document, which he
said was to be presented in Court and explained the contents of
the document signed the day before. It was only then that Adela
came to know that said document was a deed of sale. 1 When
Adela protested, Villegas told her that the matter could be
discussed better in his house in Malabon. On arriving at Malabon,
Villegas informed Adela that the amount of P50,000.00 which
Rizalina was paying for her share in the inheritance, was probably
more than what she would get in the estate, because the estate is
not valuable and had plenty of debts. Villegas handed to Adela
P6,800.00 in cash and a check drawn, by Rizalina on the
Prudential Bank for P3,200.00. Although Adela did not want to
accept the money, Villegas refused to take them back. When she
was made to sign the deed of assignment, Adela did not know the
true value of the estate, which she now estimates to be no less
than P1,000.000.00. In the same manifestation, Adela stated that
a complaint for annulment of the Deed of Assignment was being
prepared; that she was tendering the full amount of P10,000.00 to
Villegas or Rizalina; that she was placing the above facts within
the knowledge of the Court so that no action be taken giving value
to the alleged deed of assignment and in order that she (Adela)
might be notified of each and all pleadings or orders connected
with the proceedings. The administrator Villegas and Rizalina filed
exceptions and/or objections to the Manifestation, denying the
allegations of fraud, undue influence and the like.
In a motion dated September 7, 1955, filed with the CFI of Pasay,
Adela asked the Court to transfer Special Proceedings No. 2100,
to Branch I (Pasig), alleging that the complaint for the nullity of the
Deed of Assignment filed with the Rizal CFI had been assigned to
said Branch I; and that the transfer would save time and effort on
the part of all concerned. The motion was strongly opposed by the
administrator who stated, among others
That in the final distribution of the estate to the heirs, the share
corresponding to the movant Adela Santos Gutierrez may be
ordered withheld by this Court (if due motion therefor shall have
been presented to this Court) until the validity of the deed of
assignment shall have been resolved by Branch I of the Court of
First Instance of Rizal.
On September 16, 1955, the motion to transfer was denied.
On February 9, 1956, Adela presented with the Probate Court, a
motion praying that the administrator and/or his attorneys be
required to furnish her all copies of pleadings filed or to be filed in
the intestate proceedings, it appearing that the administrator
presented pleadings in Court without serving her copies thereof.
An opposition was interposed by the administrator, who alleged
that the movant, although originally a party to the probate
proceeding, has voluntarily and expressly desisted from being so,
and that having assigned by sale, all her rights, interests and
participations in the estate, she has no longer any legal standing
in the case. On March 12, 1956, the Court (Judge Emilio
Rilloraza, presiding) promulgated the following order
. . ., the Court is of the opinion that the said motion should be, as
it is hereby, granted and the said administrator and/or his
attorneys are hereby directed to furnish Adela Santos Gutierrez,
through counsel, all copies of the pleadings filed and to be filed in
this case, except those mentioned in said motion within a
reasonable time upon notice hereof.
The Clerk of Court should see to it that before receiving for filing
by the administrator or the other legal heir, Rizalina Santos
Rivera, and/or their respective counsel, any pleadings, motion,
etc., that copies thereof have been furnished Adela Santos
Gutierrez through counsel.
A series of long pleadings were presented by the parties,
following a motion of reconsideration, containing arguments and
authorities sustaining their respective theories. On June 2, 1956,

vacation Judge Jesus Y. Perez, handed down an Order, the

material portions of which follow
xxx
xxx
xxx
The only question for determination in this incident is whether or
not Adela Santos Gutierrez has a right to intervene in this probate
proceeding. The Administrator contends that she has no such
right because she had already assigned all her rights to her sister,
Rizalina Santos Rivera.
Although at the outset, Adela Santos Gutierrez bad the right to
intervene herein as one of the legal heirs of the deceased Irene
Santos, yet, when she filed her manifestation, accompanied by
the Deed of Sale and Assignment, informing this Court that she
had assigned all her rights and interest as such heir to her sister,
Rizalina Santos Rivera, said Adela Santos Gutierrez had ceased
to have any interest in this estate and without such interest, she
could no longer intervene in this proceeding. The assignment, it
copy of which is attached to the record, is in the form of a public
deed which is entitled to be accorded the presumption of validity
so that until the same is annulled in the corresponding action filed
by Adela Santos Gutierrez in the Pasig Branch of this Court, her
interest would merely be a contingent one, that is, depending
upon the contingency of a decision declaring such annulment of
the deed of assignment. This contingent interest of Adela Santos
Gutierrez is not sufficient to make her an interested party in this
proceedings, unless otherwise provided by law, the interest
required in order that a person may be a party, must be material
and direct, and not indirect or contingent (II Moran's Rules of
Court, 1952 Ed., pp. 391-92). We quote the following from
Moran's Rules of Court:
xxx
xxx
xxx
In the same way, since the interest of Adela Santos Gutierrez to
be considered as heir is dependent upon the contingency that she
would succeed in her case for annulment of the Deed of
Assignment in the Court of First Instance of Rizal, her contingent
interest is not sufficient to make her an interested party in this
proceeding.
WHEREFORE, the Court hereby sustains the motion for
reconsideration filed by the administrator and hereby sets aside
the order of March 12, 1956.1wph1.t
Adela Santos Gutierrez, on June 26, 1956, moved for the
reconsideration of the above Order, contending that her motion on
February 8, 1956, was not a leave for intervention (Rule 13). At
most, the rule on transfer of interest pendente lite (Sec. 20, Rule
3), should be applicable, not that of intervention. On August 10,
1956, Judge Rilloraza, who had already returned from vacation,
set aside the order of Judge Perez, stating
..., this Court is of the opinion that the order of this Court dated
June 2, 1956 should be, as it is hereby set aside.
Let the administrator and/or his attorney furnish henceforth Adela
Santos Gutierrez, through counsel, copies of all pleadings,
motions, etc., to be filed in this case.
The above Order is now the subject of the instant appeal, the
administrator and Rizalina Santos Rivera assigning three (3)
errors allegedly committed by the court a quo, all of which pose a
singular issue, viz., whether Adela Santos Gutierrez is still entitled
to be furnished with pleadings filed by the administrator in the
probate proceedings and orders therein issue by the lower court.
The order appealed from being interlocutory, cannot be the
subject of an appeal. Even on this plane alone, the appeal should
be dismissed. Of course, appellants cited the case of Tengco v.
San Jose, G.R. No. L-8162, Aug. 30, 1955, wherein We
considered the appeal as petition for certiorari. That case,
however, has no parallel to the one now under consideration. It
was one for mandamus for the purpose of compelling the Judge
to give due course to an appeal. Considering that in order for
certiorari and mandamus to prosper, allegations to the effect that
the court has no jurisdiction, or it acted in excess thereof or with
grave abuse of discretion, must appear, which is not obtaining in
the instant case (because it is an ordinary appeal), it becomes
peremptory that the present appeal is not in order.

28
Moreover, it cannot be successfully denied that Adela Santos
Gutierrez is an indispensable party to the proceedings in
question. Her interest in the estate is not inchoate, it was
established at the time of death of Irene Santos on November 11,
1954. While it is true that she executed a deed of assignment, it is
also a fact that she asked the same to be annulled, which action
is now pending before the Rizal CFI, Pasig Branch. Although
Adela had filed a manifestation dropping herself from the
proceedings and presenting therewith the supposed Deed of
Assignment, the record, nevertheless fails to show that action
thereon had been taken by the probate Court. Every act intended
to put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport to
be a sale, an exchange, a compromise, or any other transaction
(Art. 1082, NCC). No serious argument can be offered to deny the
co-heirship of appellee in the estate under probate. It appearing (if
We assume the due execution of the Deed of Assignment), that
the transaction is in the nature of extrajudicial partition, court
approval is imperative, and the heirs cannot just divest the court
of its jurisdiction over the estate and over their persons, by the
mere act of assignment and desistance. Thus, in the case of
Sandoval v. Santiago, G.R. No. L-1723, May 30, 1949, this Court
said: ". . . and the heirs of the deceased Marquez could not divest
the Court of First Instance of its already acquired jurisdiction by
the mere fact of dividing and distributing extrajudicially the estate
of the deceased among themselves". But even if the partition had
been judicially approved on the basis of the alleged deed of
assignment, an aggrieved heir does not lose her standing in the
probate court.
In our opinion, the court that approved the partition and the
agreement in ratification thereof may annul both whenever, as it is
here alleged, the approval was obtained by deceit or fraud, and
the petition must be filed in the courts of the intestate
proceedings, for it is generally admitted that probate courts are
authorized to vacate any decree or judgment procured by fraud,
not only while the proceedings in the course of which it was
issued are pending, but even, as in this case, within a reasonable
time thereafter. (Trillana v. Crisostomo, G.R. No. L-3378, Aug. 22,
1951; Espinosa v. Barrios. 70 Phil. 311).
We agree with appellee that the motion in question is not one of
intervention, but solely a plea to enforce a right and that is to
receive pleadings and orders related to the case. Evidently, the
use of the word "intervention" in the manifestation and pleadings
presented by Adela was resorted to for want of another
appropriate word. In effect, all she wanted to convey was that she
should participate or continue taking part in the case for being an
original party therein. It was her belief that in filing the
manifestation dropping herself from the proceedings (but which
she later informed the court to have been secured thru fraud), her
standing might have been affected. Intervention as contemplated
by the Rules is a proceeding in a suit or action by which a third
person is permitted by the court to make himself a party, either
joining plaintiff in claiming what is sought by the complaint, or
uniting with defendant in resisting the claims of plaintiff, or
demanding something adversely to both of them; the act or
proceeding by which a third person becomes a party in a suit
pending between others; the admission, by leave of court, of a
person not an original party to pending legal proceedings, which
such person becomes a party thereto for the protection of some
right or interest alleged by him to be affected by such proceedings
(Judge of Camarines Sur, et al. vs. David, et al., G.R. No. 45454,
April 12, 1939, cited in Francisco's Rules of Court, Vol. I, Part I, p.
639, emphasis supplied). The circumstances stated above do not
fit the status of Adela in the probate proceedings; she was not a
third person; she was an original party therein.
We see no prejudice to be suffered by the administrator and
Rizalina, if they are required to furnish copies of their pleadings to
appellee. On the contrary, doing so, will give appellee her day in
court and provide protection to the administrator himself.
IN VIEW OF THE FOREGOING, We find the Order appealed

from to be in conformity with the law and jurisprudence. The same

should be, as it is hereby affirmed, in all respects, with costs
against the appellants Jose D. Villegas and Rizalina Santos
Rivera, in both instances.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Barrera and Dizon, JJ., concur. Bengzon, C.J., is on leave

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23372
June 14, 1967
IN RE: INTESTATE ESTATE OF THE LATE PIO DURAN.
CIPRIANO DURAN and MIGUEL DURAN, petitioners-appellants,
vs.
JOSEFINA B. DURAN, movant-oppositor and appellee.
A. C. Aguilar, N. J. Quisumbing and E. Quisumbing-Fernando for
petitioners-appellants. Bausa, Ampil and Suarez for movantoppositor-appellee.
BENGZON J.P, J.:
Pio Duran died without testament on February 28, 1961 in
Guinobatan Albay. Among his alleged heirs are Josefina Duran,
as surviving spouse; several brothers and sisters; nephews and
nieces.
Subsequent to his death, on June 2, 1962, Cipriano Duran, one of
the surviving brothers, executed a public instrument assigning
and renouncing his hereditary rights to the decedent's estate in
favor of Josefina Duran, for the consideration of P2,500.00.
A year later, on June 8, 1963, Cipriano Duran filed in the Court of
First Instance of Albay a petition for intestate proceedings to settle
Pio Duran's estate, further asking that he be named the
administrator. An ex parte motion to be appointed special
administrator was also filed by him.
Against said petition, Josefina Duran filed on August 9, 1963 an
opposition, praying for its dismissal upon the ground that the
petitioner is not an "interested person" in the estate, in view of the
deed of transfer and renunciation the estate, in view of aforestated, attaching a copy of the same; in the alternative, she asked
to be appointed administratrix.
Replying to this, Cipriano alleged, on September 11, 1963,
alleged in his opposition to the motion to dismiss, that Josefina
Duran was not the decedent's wife. Anent the deed of
assignment, he contended that the same was procured thru fraud,
with gross inadequacy of price and vitiated by lesion.
Still later, another brother of the decedent, Miguel Duran, filed on
September 14, 1963, a petition to be joined as co-petitioner of
Cipriano. Josefina Duran moved to strike out said petition as an
improper attempt to intervene in the case. She also filed a reply to
Cipriano's opposition to her motion to dismiss. In turn, Miguel filed
an opposition to Josefina's motion to strike out.1wph1.t
Acting on said motions, on June 3, 1964, the Court of First
Instance issued an order dismissing the petition of Cipriano for his
lack of interest in the estate. Said lack of interest was premised
on the deed of transfer executed by Cipriano, regarding which the
court declared itself without power to examine in said
proceedings, collaterally, the alleged fraud, inadequacy of price
and lesion that would render it rescissible or voidable. And with
the petition's dismissal, Miguel's petition to be joined as copetitioner was deemed without leg to stand on.
Appeal to Us directly, on questions of law, was taken by Cipriano
and Miguel Duran.
The Rules of Court provides that a petition for administration and
settlement of an estate must be filed by an "interested person"
(See. 2, Rule 79). Appellants contend that the deed of assignment
executed by Cipriano did not operate to render him a person
without interest in the estate. Relying on In re Irene Santos, L11848, May 31, 1962, they argue that an assignment by one heir
of his share in the estate to a co-heir amounts to a partition
needing approval by the settlement court to be effective; and that

29
the assigning heir does not lose his status as a person interested
in the estate, even after said assignment is approved by the court.
The situation in the Santos case involves an assignment between
co-heirs pendente lite, during the course of settlement
proceedings, properly and validly commenced. At the time of said
assignment, therefore, the settlement court had already acquired
jurisdiction over the properties of estate. As a result, any
assignment regarding the same had to be approved by said court.
And since the approval the court is not deemed final until the
estate is closed the assigning heir remains an interested person
in proceedings even after said approval, which can be vacated is
given.
In the present case, however, the assignment took place when no
settlement proceedings was pending. The properties subject
matter of the assignment were not under the jurisdiction of a
settlement court. Allowing that the assignment must be deemed a
partition as between the assignor and assignee, the same does
not need court approval to be effective as between the parties. An
extrajudicial partition is valid as between the participants even if
the requisites of Sec. 1, Rule 74 for extrajudicial partition are not
followed, since said requisites are for purposes of binding
creditors and non-participating heirs only (Hernandez v. Andal, 78
Phil. 196). Should it be contended that said partition was attended
with fraud, lesion or inadequacy of price, the remedy is to rescind
or to annul the same in an action for that purpose. And in the
meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is annulled or
rescinded, it is deemed valid and effective against him, so that he
is left without that "interest" in the estate required to petite for
settlement proceedings.
Anent appellant Miguel Duran, he sought in his petition below to
"join petitioner Cipriano Duran as co-petitioner in the latter's
petition . . . and incorporates herein by adoption all the allegations
made in said petition." (Record on Appeal, pp. 45-46). The same,
therefore, amounted to a petition to intervene in the settlement
proceedings. As aptly ruled by the court a quo, since there was
really no settlement proceedings in the first place, the petition to
intervene must be denied.
Finally, although Josefina Duran prayed to be appointed
administratrix, her doing so did not amount to ratification of the
petition for settlement under the ruling in Eusebio v. Valmores, 97
Phil. 163, since she did so merely by way of an alternative prayer,
should her motion to dismiss fail. And said motion to dismiss was
properly sustained.
Wherefore, the dismissal order appealed from is hereby affirmed,
with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78590 June 20, 1988
PEDRO DE GUZMAN, petitioner,
vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC
BRANCH 58, MAKATI, METRO, MANILA; DEPUTY SHERIFFS
JOSE B. FLORA and HONORIO SANTOS and ELAINE G. DE
GUZMAN, respondents.
Bautista, Picazo, Cruz, Buyco and Tan for private respondent.
Ponce Enrile, Cayetano, Bautista, Picaso and Reyes,
collaborating counsel for private respondent.
GUTIERREZ, JR., J.:
May a probate court act on and/or grant motions for the
appointment of a special administrator, for the issuance of a writ
of possession of alleged properties of the deceased person, and
for assistance to preserve the estate in a petition for the

settlement of the intestate estate even before the court has

caused notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court?
On May 5, 1987, private respondent Elaine G. de Guzman filed a
petition for the settlement of the intestate estate of Manolito de
Guzman, before the Regional Trial Court of Makati, Metro Manila.
The case was docketed as Special Proceedings .No. M-1436.
The petition alleges that: (1) on March 22,1987, Manolito de
Guzman died in Makati, Metro Manila; (2) at the time of his death,
the decedent was a resident of Makati, Metro Manila; (3)
decedent left personal and real properties as part of his estate,
listed in Annexes "A," "B," "C" and "D;" (4) the properties were
acquired after the marriage of the petitioner to the decedent and
therefore are included in their conjugal partnership; (5) the estate
of -the decedent has a probable net value which may be
provisionally assessed at P4,000,000.00 more or less; (6) the
possible creditors of the estate, who have accounts payable. and
existing claims against the firm C. SANTOS Construction are
listed in Annex "E;" (7) the compulsory heirs of the decedent are
the as the surviving spouse and their two (2) minor children
namely: Charmane Rose de Guzman 11 years and Peter Brian de
Guzman, 9 years old; (8) after diligent search and inquiry to
ascertain whether the decedent left a last will and testament,
none has been found and according to the best knowledge
information and belief of the petitioner, Manolito de Guzman died
intestate; and (9) the petitioner as the survey surviving spouse of
the decedent, is most qualified and entitled to the grant of letters
of administration.
On May 22, 1987, the private respondent filed a motion for writ of
possession over five (5) vehicles registered under the name of
Manolito de Guzman, alleged to be conjugal properties of the de
Guzman's but which are at present in the possession of the
private respondent's father-in- law, herein petitioner Pedro de
Guzman. The motion stated that as co-owner and heir, the private
respondent must have the possession of said vehicles in order to
preserve the assets of her late husband. On the same day, the
lower court issued an order setting for hearing the motion on May
27, 1987 directing the deputy sheriff to notify petitioner Pedro de
Guzman at the expense of the private respondent.
The scheduled May 27, 1987 hearing was postponed on motion
of petitioner's counsel, Atty. Ricardo Fojas. The petitioner was
also given three (3) days from May 27, 1987 to give his comment
on the motion for a writ of possession. The hearing was reset to
June 5, 1987 at 3:00 p.m.
On May 29, 1987, the petitioner's counsel filed a notice of
appearance and an "Urgent Motion For Extension of Time to File
an Opposition and for Resetting of the Hearing."
The motion was granted and the petitioner was given five (5) days
from receipt of the order within which to file his opposition to the
motion for a writ of possession. The hearing was reset to June 15,
1987 at 2:00 in the afternoon.
In the meantime, on May 28, 1987, the private respondent filed
her "Ex-Parte Motion to Appoint Petitioner as Special
Administratrix of the Estate of Manolito de Guzman."
In an order dated May 28,1987, the aforesaid motion was set for
hearing on June 5, 1987. In this same order, the lower court
directed that all parties in the case be notified. However, no notice
of the order was given to the petitioner.
In an order dated June 5, 1987, the lower court granted the
private respondent's motion to be appointed as special
administratrix, to wit:
Finding the motion for appointment of special administratrix, on
the ground alleged therein to be well-founded, and finding further
that it is to be the best interest of the Estate of Manolito de
Guzman that petitioner-movant Elaine G. de Guzman, be
appointed as Special Administratrix in this case, said motion is
granted.
WHEREFORE, Elaine G. de Guzman, petitioner-movant, is
hereby appointed as Special Administratrix of the Estate of the
deceased Manolito de Guzman, pending appointment of a regular

30
administrator. The bond for the said special administratrix is
hereby fixed in the amount of P200,000.00. (Rollo, p. 40)
On June 8, 1987, the lower court issued another order, to wit:
Acting on the Urgent Ex-Parte Motion for Assistance" filed by
Petitioner-Special Administratrix Elaine de Guzman for
appointment of Deputy Sheriffs Honorio Santos and Jose B. Flora
together with some military men and/or policemen to assist her in
preserving the estate of Manolito de Guzman, the motion is
granted and the Deputy Sheriffs Honorio Santos and Jose B.
Flora are hereby appointed for that purpose, provided that the
subject matter of the motion for writ of possession pending before
this Court shall not be affected. (Rollo, p. 41)
Trouble ensued when the respondents tried to enforce the above
order. The petitioner resisted when Deputy Sheriffs Jose B. Flora
and Honorio Santos tried to take the subject vehicles on the
ground that they were his personal properties. According to the
petitioner, this resulted in a "near shoot-out between members of
the Makati Police, who were to maintain peace and order, and the
CAPCOM soldiers who were ostensibly aiding respondent sheriffs
and Elaine G. de Guzman" and that "the timely arrival of Mayor
Jejomar Binay of Makati defused the very volatile situation which
resulted in an agreement between the parties that the bulldozer,
sought to be taken, be temporarily placed in the custody of Mayor
Binay, while the parties seek clarification of the order from
respondent Judge Zosimo Angeles the next day, June 9, 1981 at
10:30 a.m."
In the conference held before the respondent court attended by
the counsels for both parties, the June 8, 1987 order was clarified
to the effect that the order "must be merely to take and preserve
assets admittedly belonging to the estate, but not properties, the
ownership of which is claimed by third persons."
The petitioner then filed a manifestation listing properties which
he claimed to be his own.
Thereafter, the instant petition was filed to annul the lower court's
orders dated June 5, 1987 and June 8, 1987.
In a resolution dated June 10, 1987, we issued a temporary
restraining order enjoining the respondent court from enforcing
the two questioned orders. In another resolution dated October
28, 1987, we gave due course to the petition.
The petitioner contends that the June 5, 1987 order is a patent
nullity, the respondent court not having acquired jurisdiction to
appoint a special administratrix because the petition for the
settlement of the estate of Manolito de Guzman was not yet set
for hearing and published for three consecutive weeks, as
mandated by the Rules of Court. The petitioner also stresses that
the appointment of a special administratrix constitutes an abuse
of discretion for having been made without giving petitioner and
other parties an opportunity to oppose said appointment.
Anent the June 8, 1987 order, the petitioner alleges that the
immediate grant of the motion praying for the court's assistance in
the preservation of the estate of the deceased, "without notice to
the petitioner Pedro de Guzman, and its immediate
implementation on the very same day by respondent Elaine G. de
Guzman with the assistance of respondents deputy sheriffs, at no
other place but at the home of the petitioner Pedro de Guzman,
are eloquent proofs that all the antecedent events were intended
solely to deprive petitioner de Guzman of his property without due
process of law." He also prays that the respondent Judge be
disqualified from further continuing the case.
As stated earlier, the pivotal issue in the instant petition hinges on
whether or not a probate court may appoint a special
administratrix and issue a writ of possession of alleged properties
of a decedent for the preservation of the estate in a petition for the
settlement of the intestate estate of the said deceased person
even before the probate court causes notice to be served upon all
interested parties pursuant to section 3, Rule 79 of the Revised
Rules of Court.
As early as March 18, 1937, in the case of Santos v. Castillo (64
Phil. 211) we ruled that before a court may acquire jurisdiction
over the case for the probate of a will and the administration of

the properties left by a deceased person, the application must

allege the residence of the deceased and other indispensable
facts or circumstances and that the applicant is the executor
named in the will or is the person who had custody of the will to
be probated.
In the instant case, there is no doubt that the respondent court
acquired jurisdiction over the proceedings upon the filing of a
petition for the settlement of an intestate estate by the private
respondent since the petition had alleged all the jurisdictional
facts, the residence of the deceased person, the possible heirs
and creditors and the probable value of the estate of the
deceased Manolito de Guzman pursuant to Section 2, Rule 79 of
the Revised Rules of Court.
We must, however, differentiate between the jurisdiction of the
probate court over the proceedings for the administration of an
estate and its jurisdiction over the persons who are interested in
the settlement of the estate of the deceased person. The court
may also have jurisdiction over the "estate" of the deceased
person but the determination of the properties comprising that
estate must follow established rules.
Section 3, Rule 79 of the Revised Rules of Court provides:
Court to set time for hearing. Notice thereof. When a petition
for letters of administration is filed in the court having jurisdiction,
such court shall fix a time and place for hearing the petition, and
shall cause notice thereof to be given to the known heirs and
creditors of the decedent, and to any other persons believed to
have an interest in the estate, in the manner provided in sections
3 and 4 of Rule 76.
It is very clear from this provision that the probate court must
cause notice through publication of the petition after it receives
the same. The purpose of this notice is to bring all the interested
persons within the court's jurisdiction so that the judgment therein
becomes binding on all the world. (Manalo v. Paredes, 47 Phil.
938; Moran, Comment on the Rules of Court Volume 3,1980
Edition) Where no notice as required by Section 3, Rule 79 of the
Rules of Court has been given to persons believed to have an
interest in the estate of the deceased person; the proceeding for
the settlement of the estate is void and should be annulled. The
requirement as to notice is essential to the validity of the
proceeding in that no person may be deprived of his right to
property without due process of law. (Eusebio v. Valmores, 96
Phil. 163).
Verily, notice through publication of the petition for the settlement
of the estate of a deceased person is jurisdictional, the absence
of which makes court orders affecting other persons, subsequent
to the petition void and subject to annulment. (See Eusebio v.
Valmores, supra)
In the instant case, no notice as mandated by section 3, Rule 79
of the Revised Rules of Court was caused to be given by the
probate court before it acted on the motions of the private
respondent to be appointed as special administratrix, to issue a
writ of possession of alleged properties of the deceased person in
the widow's favor, and to grant her motion for assistance to
preserve the estate of Manolito de Guzman.
The "explanation" which we required of the respondent Judge for
his apparent haste in issuing the questioned orders, states:
xxx xxx xxx
10. In issuing the subject Orders, undersigned acted in the honest
conviction that it would be to the best interest of the estate without
unduly prejudicing any interested party or third person. Any delay
in issuing the said Orders might have prejudiced the estate for the
properties may be lost, wasted or dissipated in the meantime.
(Rollo, p. 86)
xxx xxx xxx
This explanation while seemingly plausible does not sufficiently
explain the disregard of the Rule. If indeed, the respondent court
had the welfare of both the estate and the person who have
interest in the estate, then it could have caused notice to be given
immediately as mandated by the Revised Rules of Court. All
interested persons including herein petitioner who is the biggest

31
creditor of the estate listed in the Petition (P850,240.80) could
have participated in the proceedings especially so, because the
respondent immediately filed a motion to have herself appointed
as administratrix. A special administrator has been defined as the
"representative of decedent appointed by the probate court to
care for and preserve his estate until an executor or general
administrator is appointed." (Jones v. Minnesota Transfer R. Co.
1965 ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA 189).
The petitioner as creditor of the estate has a similar interest in the
preservation of the estate as the private respondent who happens
to be the widow of deceased Manolito de Guzman. Hence, the
necessity of notice as mandated by the Rules of Court. It is not
clear from the records exactly what emergency would have
ensued if the appointment of an administrator was deferred at
least until the most interested parties were given notice of the
proposed action. No unavoidable delay in the appointment of a
regular administrator is apparent from the records.
As argued by the petitioner:
The position of special administrator, by the very nature of the
powers granted thereby, is one of trust and confidence. It is a
fiduciary position and, therefore, requires a comprehensive
determination of the suitability of the applicant to such position.
Hence, under Philippine jurisprudence, it has been settled that the
same fundamental and legal principles governing the choice of a
regular administrator should be taken in choosing the special
administrator (Francisco, Vol. VB, page 46 citing the cases of
Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.)
In order to fully and correctly ascertain the suitability of the
applicant to the trust, a hearing is obviously necessary wherein
the applicant can prove his qualifications and at the same time
affording oppositors, given notice of such hearing and application,
the opportunity to oppose or contest such application.
The requirement of a hearing and the notification to all the known
heirs and other interested parties as to the date thereof is
essential to the validity of the proceeding for the appointment of
an administrator "in order that no person may be deprived of his
right or property without due process of law" (Eusebio v.
Valmores, 97 Phil. 163). Moreover, a hearing is necessary in
order to fully determine the suitability of the applicant to the trust,
by giving him the opportunity to prove his qualifications and
affording oppositors, if any, to contest the said application.
(Matute v. Court of Appeals, 26 SCRA 770; emphasis supplied).
Since the position of special administrator is a very sensitive one
which requires trust and confidence, it is essential that the
suitability of the applicant be ascertained in a hearing with due
notice to all oppositors who may object precisely to the applicant's
suitability to the trust. (Rollo, pp. 103-104)
If emergency situations threatening the dissipation of the assets
of an estate justify a court's immediately taking some kind of
temporary action even without the required notice, no such
emergency is shown in this case. The need for the proper notice
even for the appointment of a special administrator is apparent
from the circumstances of this case.
The respondent Judge himself explains that the order for the
preservation of the estate was limited to properties not claimed by
third parties. If certain properties are already in the possession of
the applicant for special administratrix and are not claimed by
other persons, we see no need to hurry up and take special action
to preserve those properties. As it is, the sheriffs took advantage
of the questioned order to seize by force, properties found in the
residence of the petitioner which he vehemently claims are owned
by him and not by the estate of the deceased person.
The petitioner also asks that the respondent Judge be disqualified
from continuing with the proceedings of the case on the ground
that he is partial to the private respondent.
In view of the fact that the respondent Judge in his "Explanation"
requests that he be inhibited from further active on the case, this
issue has now become academic. We accept Judge Angeles"
voluntary inhibition in line with our ruling in Pimentel v. Salanga
(21 SCRA 160). As we stated in Query of Executive Judge

Estrella T. Estrada, Regional Trial Court of Malolos, Bulacan on

the conflicting views of Regional Trial CourtJudges Manalo and
Elisaga Re: Criminal Case No. 4954 M Administrative Matter
No. 87-9-3918-RTC, October 26, 1987:
xxx xxx xxx
... A judge may not be legally prohibited from sitting in a litigation.
But when suggestion is made of record that he might be induced
to act in favor of one party or with bias or prejudice against a
litigant arising out of circumstances reasonably capable of inciting
such a state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the
people's faith in the courts of justice is not impaired. A salutary
norm is that he reflect on the probability that a losing party might
nurture at the back of his mind the thought that the judge had
unmeritoriously tilted the scales of justice against him. That
passion on the part of a judge may be generated because of
serious charges of misconduct against him by a suitor or his
counsel, is not altogether remote. He is a man, subject to the
frailties of other men. He should, therefore, exercise great care
and caution before making up his mind to act or withdraw from a
suit Where that party or counsel is involved. He could in good
grace inhibit himself where that case could be heard by another
judge and where no appreciable prejudice would be occasioned
to others involved thereon. On the result of his decisions to sit or
not sit may depend to a great extent that all-important confidence
in the impartiality of the judiciary. If after reflection he should
resolve to voluntarily desist from sitting in a case where his
motives or fairness might be seriously impugned, his action is to
be interpreted as giving meaning and substance to the second
paragraph of Section 1, Rule 137. He serves the cause of the law
who forestalls miscarriage of justice.
Considering the foregoing, we find no need to discuss the other
issues raised in the petition.
WHEREFORE, the instant petition is GRANTED. The questioned
orders of the Regional Trial Court, Branch 58 of Makati are
hereby set aside. The case is ordered remanded to the lower
court for the hearing of the petition with previous notice to all
interested parties as required by law. In view of the voluntary
inhibition of the respondent Judge, the Executive Judge of the
Regional Trial Court, Makati is directed to re-raffle the case to
another branch of the court. The Temporary Restraining Order
dated June 10, 1987 is made permanent. No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40502 November 29, 1976
VIRGINIA GARCIA FULE, and HONORABLE SEVERO A.
MALVAR, Presiding Judge, Court of First Instance of Laguna,
Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B.
GARCIA and AGUSTINA B. GARCIA, respondents.
G.R. No. L-42670 November 29, 1976
VIRGINIA GARCIA FULE, petitioner,
vs.
HONORABLE ERNANI C. PAO, Presiding Judge of Court of
First Instance of Rizal, Quezon City, Branch XVIII, and
PRECIOSA B. GARCIA, respondents.
Francisco Carreon for petitioners.
Augusto G. Gatmaytan for private respondents.
MARTIN, J.:
These two interrelated cases bring to Us the question of what
the word "resides" in Section 1, Rule 73 of the Revised Rules
Of Court, referring to the situs of the settlement of the estate
of deceased persons, means. Additionally, the rule in the

32
appointment of a special administrator is sought to be
reviewed.
On May 2, 1973, Virginia G. Fule filed with the Court of First
Instance of Laguna, at Calamba, presided over by Judge
Severo A. Malvar, a petition for letters of administration,
docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on
April 26, 1973, Amado G. Garcia, a property owner of
Calamba, Laguna, died intestate in the City of Manila, leaving
real estate and personal properties in Calamba, Laguna, and
in other places, within the jurisdiction of the Honorable
Court." At the same time, she moved
ex parte for her appointment as special administratrix over
the estate. On even date, May 2, 1973, Judge Malvar granted
the motion.
A motion for reconsideration was filed by Preciosa B. Garcia
on May 8, 1973, contending that the order appointing Virginia
G. Fule as special administratrix was issued without
jurisdiction, since no notice of the petition for letters of
administration has been served upon all persons interested
in the estate; there has been no delay or cause for delay in
the proceedings for the appointment of a regular
administrator as the surviving spouse of Amado G. Garcia,
she should be preferred in the appointment of a special
administratrix; and, Virginia G. Fule is a debtor of the estate
of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed
that she be appointed special administratrix of the estate, in
lieu of Virginia G. Fule, and as regular administratrix after
due hearing.
While this reconsideration motion was pending resolution
before the Court, Preciosa B. Garcia filed on May 29, 1973 a
motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the
motion for reconsideration of May 8, 1973 that her
appointment was obtained through erroneous, misleading
and/or incomplete misrepresentations; that Virginia G. Fule
has adverse interest against the estate; and that she has
shown herself unsuitable as administratrix and as officer of
the court.
In the meantime, the notice of hearing of the petition for
letters of administration filed by Virginia G. Fule with the
Court of First Instance of Calamba, Laguna, was published
on May 17, 24, and 31, 1973, in the Bayanihan, a weekly
publication of general circulation in Southern Luzon.
On June 6, 1973, Preciosa B. Garcia received a
"Supplemental Petition for the Appointment of Regular
Administrator ' filed by Virginia G. Fule. This supplemental
petition modified the original petition in four aspects: (1) the
allegation that during the lifetime of the deceased Amado G.
Garcia, he was elected as Constitutional Delegate for the
First District of Laguna and his last place of residence was at
Calamba, Laguna; (2) the deletion of the names of Preciosa
B. Garcia and Agustina Garcia as legal heirs of Amado G.
Garcia; (3) the allegation that Carolina Carpio, who was
simply listed as heir in the original petition, is the surviving
spouse of Amado G. Garcia and that she has expressly
renounced her preferential right to the administration of the
estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule
be appointed as the regular administratrix. The admission of
this supplemental petition was opposed by Preciosa B.
Garcia for the reason, among others, that it attempts to
confer jurisdiction on the Court of First Instance of Laguna,
of which the court was not possessed at the beginning
because the original petition was deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to
the original and supplemental petitions for letters of
administration, raising the issues of jurisdiction, venue, lack
of interest of Virginia G. Fule in the estate of Amado G.
Garcia, and disqualification of Virginia G Fule as special
administratrix.
An omnibus motion was filed by Virginia G. Fule on August

20, 1973, praying for authority to take possession of

properties of the decedent allegedly in the hands of third
persons as well as to secure cash advances from the
Calamba Sugar Planters Cooperative Marketing Association,
Inc. Preciosa B. Garcia opposed the motion, calling attention
to the limitation made by Judge Malvar on the power of the
special administratrix, viz., "to making an inventory of the
personal and real properties making up the state of the
deceased."
However, by July 2, 1973, Judge Malvar and already issued
an order, received by Preciosa B. Garcia only on July 31,
1973, denying the motion of Preciosa B. Garcia to reconsider
the order of May 2, 1973, appointing Virginia G. Fule as
special administratrix, and admitting the supplementation
petition of May 18,1973.
On August 31, 1973, Preciosa B. Garcia moved to dismiss the
petition, because (1) jurisdiction over the petition or over the
parties in interest has not been acquired by the court; (2)
venue was improperly laid; and (3) Virginia G. Fule is not a
party in interest as she is not entitled to inherit from the
deceased Amado G. Garcia.
On September 28, 1973, Preciosa B. Garcia filed a
supplemental motion to substitute Virginia G. Fule as special
administratrix, reasoning that the said Virginia G. Fule
admitted before before the court that she is a full-blooded
sister of Pablo G. Alcalde, an illegitimate son of Andrea
Alcalde, with whom the deceased Amado G. Garcia has no
relation.
Three motions were filed by Preciosa B. Garcia on November
14, 1973, one, to enjoin the special administratrix from taking
possession of properties in the hands of third persons which
have not been determined as belonging to Amado G. Garcia;
another, to remove the special administratrix for acting
outside her authority and against the interest of the estate;
and still another, filed in behalf of the minor Agustina B.
Garcia, to dismiss the petition for want of cause of action,
jurisdiction, and improper venue.
On November 28, 1973, Judge Malvar resolved the pending
omnibus motion of Virgina G. Fule and the motion to dismiss
filed by Preciosa B. Garcia. Resolving the motion to dismiss,
Judge Malvar ruled that the powers of the special
administratrix are those provided for in Section 2, Rule 80 of
the Rules of Court, 1 subject only to the previous
qualification made by the court that the administration of the
properties subject of the marketing agreement with the
Canlubang
Sugar
Planters
Cooperative
Marketing
Association should remain with the latter; and that the
special administratrix had already been authorized in a
previous order of August 20, 1973 to take custody and
possession of all papers and certificates of title and personal
effects of the decedent with the Canlubang Sugar Planters
Cooperative Marketing Association, Inc. Ramon Mercado, of
the Canlubang Sugar Planters Cooperative Marketing
Association, Inc., was ordered to deliver to Preciosa B.
Garcia all certificates of title in her name without any
qualifying words like "married to Amado Garcia" does not
appear. Regarding the motion to dismiss, Judge Malvar ruled
that the issue of jurisdiction had already been resolved in the
order of July 2, 1973, denying Preciosa B. Garcia's motion to
reconsider the appointment of Virginia G. Fule and admitting
the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in
the place of residence of the decedent at the time of his
death was cured. Judge Malvar further held that Preciosa B.
Garcia had submitted to the jurisdiction of the court and had
waived her objections thereto by praying to be appointed as
special and regular administratrix of the estate.
An omnibus motion was filed by Preciosa B. Garcia on
December 27, 1973 to clarify or reconsider the foregoing
order of Judge Malvar, in view of previous court order

33
limiting the authority of the special administratrix to the
making of an inventory. Preciosa B. Garcia also asked for the
resolution of her motion to dismiss the petitions for lack of
cause of action, and also that filed in behalf of Agustina B.
Garcia. Resolution of her motions to substitute and remove
the special administratrix was likewise prayed for.
On December 19, 1973, Judge Malvar issued two separate
orders, the first, denying Preciosa B. Garcia's motions to
substitute and remove the special administratrix, and the
second, holding that the power allowed the special
administratrix enables her to conduct and submit an
inventory of the assets of the estate.
On January 7, 1974, Preciosa B. Garcia moved for
reconsideration of the foregoing orders of November 28,
1973 and December 19, 1973, insofar as they sustained or
failed to rule on the issues raised by her: (a) legal standing
(cause of action) of Virginia G. Fule; (b) venue; (c)
jurisdiction; (d) appointment, qualification and removal of
special administratrix; and (e) delivery to the special
administratrix of checks and papers and effects in the office
of the Calamba Sugar Planters Cooperative Marketing
Association, Inc.
On March 27, 1973, Judge Malvar issued the first questioned
order
denying
Preciosa B.
Garcia's
motion
for
reconsideration of January 7, 1974. On July 19, 1974, Judge
Malvar issued the other three questioned orders: one,
directing Ramon Mercado, of the Calamba Sugar Planters
Cooperative Marketing Association, Inc., to furnish Virginia
G. Fule, as special administratrix, copy of the statement of
accounts and final liquidation of sugar pool, as well as to
deliver to her the corresponding amount due the estate;
another, directing Preciosa B. Garcia to deliver to Virginia G.
Fule two motor vehicles presumably belonging to the estate;
and another, directing Ramon Mercado to deliver to the court
all certificates of title in his possession in the name of
Preciosa B. Garcia, whether qualified with the word "single"
or "married to Amado Garcia."
During the hearing of the various incidents of this case (Sp.
Proc. 27-C) before Judge Malvar, 2 Virginia G. Fule presented
the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her
part, Preciosa B. Garcia presented the residence certificate
of the decedent for 1973 showing that three months before
his death his residence was in Quezon City. Virginia G. Fule
also testified that Amado G. Garcia was residing in Calamba,
Laguna at the time of his death, and that he was a delegate to
the 1971 Constitutional Convention for the first district of
Laguna.
On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia
commenced a special action for certiorari and/or prohibition
and preliminary injunction before the Court of Appeals,
docketed as CA-G.R. No. 03221-SP. primarily to annul the
proceedings before Judge Malvar in Sp. Proc. No. 27-C of the
Court of First Instance of Laguna, or, in the alternative, to
vacate the questioned four orders of that court, viz., one
dated March 27, 1974, denying their motion for
reconsideration of the order denying their motion to dismiss
the criminal and supplemental petitions on the issue, among
others, of jurisdiction, and the three others, all dated July 19,
1974, directing the delivery of certain properties to the
special administratrix, Virginia G. Fule, and to the court.
On January 30, 1975, the Court of Appeals rendered
judgment annulling the proceedings before Judge Severo A.
Malvar in Sp. Proc. 27-C of the Court of First Instance of
Calamba, Laguna, for lack of jurisdiction.
Denied of their motion for reconsideration on March 31, 1975,
Virginia G. Fule forthwith elevated the matter to Us on appeal
by certiorari. The case was docketed as G.R. No. L-40502.
However, even before Virginia G. Fule could receive the
decision of the Court of Appeals, Preciosa B. Garcia had

already filed on February 1, 1975 a petition for letters of

administration before the Court of First Instance of Rizal,
Quezon City Branch, docketed as Sp. Proc. No. Q-19738, over
the same intestate estate of Amado G. Garcia. On February
10, 1975, Preciosa B. Garcia urgently moved for her
appointment as special administratrix of the estate. Judge
Vicente G. Ericta granted the motion and appointed Preciosa
B. Garcia as special administratrix upon a bond of
P30,000.00. Preciosa B. Garcia qualified and assumed the
office.
For the first time, on February 14, 1975, Preciosa B. Garcia
informed Judge Ericta of the pendency of Sp. Proc. No. 27-C
before Judge Malvar of the Court of First Instance of Laguna,
and the annulment of the proceedings therein by the Court of
Appeals on January 30, 1975. She manifested, however, her
willingness to withdraw Sp. Proc. Q-19738 should the
decision of the Court of Appeals annulling the proceedings
before the Court of First Instance of Laguna in Sp. Proc. No.
27-C have not yet become final, it being the subject of a
motion for reconsideration.
On March 10, 1973, Judge Ericta ordered the suspension of
the proceedings before his court until Preciosa B. Garcia
inform the court of the final outcome of the case pending
before the Court of Appeals. This notwithstanding, Preciosa
B. Garcia filed on December 11, 1975, an "Urgent Petition for
Authority to Pay Estate Obligations."
On December 13, 1975, Virginia G. Fule filed a "Special
Appearance to Question Venue and Jurisdiction" reiterating
the grounds stated in the previous special appearance of
March 3, 1975, and calling attention that the decision of the
Court of Appeals and its resolution denying the motion for
reconsideration had been appealed to this Court; that the
parties had already filed their respective briefs; and that the
case is still pending before the Court.
On December 17, 1975, Judge Ernani Cruz Pano, who
succeeded Judge Ericta, issued an order granting Preciosa
B. Garcia's "Urgent Petition for Authority to Pay Estate
Obligations" in that the payments were for the benefit of the
estate and that there hangs a cloud of doubt on the validity
of the proceedings in Sp. Proc. No. 27-C of the Court of First
Instance of Laguna.
A compliance of this Order was filed by Preciosa B. Garcia
on January 12,1976.
On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L42670, a petition for certiorari with temporary restraining
order, to annul the proceedings in Sp. Proc. No. Q-19738 and
to restrain Judge Ernani Cruz Pao from further acting in the
case. A restraining order was issued on February 9, 1976.
We dismiss the appeal in G.R. No. L-40502 and the petition
for certiorari in G.R. No. L-42670 for the reasons and
considerations hereinafter stated.
1. Section 1, Rule 73 of the Revised Rules of Court provides:
"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." With
particular regard to letters of administration, Section 2, Rule
79 of the Revised Rules of Court demands that the petition
therefor should affirmatively show the existence of
jurisdiction to make the appointment sought, and should

34
allege all the necessary facts, such as death, the name and
last residence of the decedent, the existence, and situs if
need be, of assets, intestacy, where this is relied upon, and
the right of the person who seeks administration, as next of
kin, creditor, or otherwise, to be appointed. The fact of death
of the intestate and his last residence within the country are
foundation facts upon which all subsequent proceedings in
the administration of the estate rest, and that if the intestate
was not an inhabitant of the state at the time of his death,
and left no assets in the state, no jurisdiction is conferred on
the court to grant letters of administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends on
the place of residence of the decedent, or of the location of
the estate," is in reality a matter of venue, as the caption of
the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been
intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of
procedure dealing merely with procedural matters.
Procedure is one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the subject
matter "existed and was fixed before procedure in a given
cause began." That power or authority is not altered or
changed by procedure, which simply directs the manner in
which the power or authority shall be fully and justly
exercised. There are cases though that if the power is not
exercised conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses the
power to exercise it legally. However, this does not amount
to a loss of jurisdiction over the subject matter. Rather, it
means that the court may thereby lose jurisdiction over the
person or that the judgment may thereby be rendered
defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once
raises a strong presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. In plain
words, it is just a matter of method, of convenience to the
parties. 5
The Judiciary Act of 1948, as amended, confers upon Courts
of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased.
Because of the existence of numerous Courts of First
Instance in the country, the Rules of Court, however,
purposedly fixes the venue or the place where each case
shall be brought. A fortiori, the place of residence of the
deceased in settlement of estates, probate of will, and
issuance of letters of administration does not constitute an
element of jurisdiction over the subject matter. It is merely
constitutive of venue. And it is upon this reason that the
Revised Rules of Court properly considers the province
where the estate of a deceased person shall be settled as
"venue." 6
2. But, the far-ranging question is this: What does the term
"resides" mean? Does it refer to the actual residence or
domicile of the decedent at the time of his death? We lay
down the doctrinal rule that the term "resides" connotes ex
vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute
or rule in which it is employed. 7 In the application of venue
statutes and rules Section 1, Rule 73 of the Revised Rules
of Court is of such nature residence rather than domicile
is the significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning residence
and not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and "domicile" but
as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term

"inhabitant." 8 In other words, "resides" should be viewed or

understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or
place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term means
merely residence, that is, personal residence, not legal
residence or domicile. 9 Residence simply requires bodily
presence as an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention
to make it one's domicile. 10 No particular length of time of
residence is required though; however, the residence must
be more than temporary. 11
3. Divergent claims are maintained by Virginia G. Fule and
Preciosa B. Garcia on the residence of the deceased Amado
G. Garcia at the time of his death. In her original petition for
letters of administration before the Court of First Instance of
Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on
April 26,1973, Amado G. Garcia, a property owner of
Calamba, Laguna, died intestate in the City of Manila, leaving
real estate and personal properties in Calamba, Laguna, and
in other places within the jurisdiction of this Honorable
Court." Preciosa B. Garcia assailed the petition for failure to
satisfy the jurisdictional requirement and improper laying of
venue. For her, the quoted statement avers no domicile or
residence of the deceased Amado G. Garcia. To say that as
"property owner of Calamba, Laguna," he also resides in
Calamba, Laguna, is, according to her, non sequitur. On the
contrary, Preciosa B. Garcia claims that, as appearing in his
death certificate presented by Virginia G. Fule herself before
the Calamba court and in other papers, the last residence of
Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Parenthetically, in her amended
petition, Virginia G. Fule categorically alleged that Amado G.
Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the
deceased Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City, and not at Calamba, Laguna. A
death certificate is admissible to prove the residence of the
decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in
evidence by Virginia G. Fule herself and also by Preciosa B.
Garcia, shows that his last place of residence was at 11
Carmel Avenue, Carmel Subdivision, Quezon City. Aside
from this, the deceased's residence certificate for 1973
obtained three months before his death; the Marketing
Agreement and Power of Attorney dated November 12, 1971
turning over the administration of his two parcels of sugar
land to the Calamba Sugar Planters Cooperative Marketing
Association, Inc.; the Deed of Donation dated January 8,
1973, transferring part of his interest in certain parcels of
land in Calamba, Laguna to Agustina B. Garcia; and
certificates of titles covering parcels of land in Calamba,
Laguna, show in bold documents that Amado G. Garcia's last
place of residence was at Quezon City. Withal, the
conclusion becomes imperative that the venue for Virginia C.
Fule's petition for letters of administration was improperly
laid in the Court of First Instance of Calamba, Laguna.
Nevertheless, the long-settled rule is that objection to
improper venue is subject to waiver. Section 4, Rule 4 of the
Revised Rules of Court states: "When improper venue is not
objected to in a motion to dismiss, it is deemed waived." In
the case before Us the Court of Appeals had reason to hold
that in asking to substitute Virginia G. Fule as special
administratrix, Preciosa B. Garcia did not necessarily waive
her objection to the jurisdiction or venue assumed by the
Court of First Instance of Calamba, Laguna, but availed of a
mere practical resort to alternative remedy to assert her
rights as surviving spouse, while insisting on the
enforcement of the Rule fixing the proper venue of the
proceedings at the last residence of the decedent.

35
4. Preciosa B. Garcia's challenge to Virginia G. Fule's
appointment as special administratrix is another issue of
perplexity. Preciosa B. Garcia claims preference to the
appointment as surviving spouse. Section 1 of Rule 80
provides that "(w)hen there is delay in granting letters
testamentary or of administration by any cause including an
appeal from the allowance or disallowance of a will, the court
may appoint a special administrator to take possession and
charge of the estate of the deceased until the questions
causing the delay are decided and executors or
administrators appointed. 13 Formerly, the appointment of a
special administrator was only proper when the allowance or
disallowance of a will is under appeal. The new Rules,
however, broadened the basis for appointment and such
appointment is now allowed when there is delay in granting
letters testamentary or administration by any cause e.g.,
parties cannot agree among themselves. 14 Nevertheless, the
discretion to appoint a special administrator or not lies in the
probate court. 15 That, however, is no authority for the judge
to become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment. Exercise
of that discretion must be based on reason, equity, justice
and legal principle. There is no reason why the same
fundamental and legal principles governing the choice of a
regular administrator should not be taken into account in the
appointment of a special administrator. 16 Nothing is wrong
for the judge to consider the order of preference in the
appointment of a regular administrator in appointing a
special administrator. After all, the consideration that
overrides all others in this respect is the beneficial interest of
the appointee in the estate of the decedent. 17 Under the law,
the widow would have the right of succession over a portion
of the exclusive property of the decedent, besides her share
in the conjugal partnership. For such reason, she would have
as such, if not more, interest in administering the entire
estate correctly than any other next of kin. The good or bad
administration of a property may affect rather the fruits than
the naked ownership of a property. 18
Virginia G. Fule, however, disputes the status of Preciosa B.
Garcia as the widow of the late Amado G. Garcia. With equal
force, Preciosa B. Garcia maintains that Virginia G. Fule has
no relation whatsoever with Amado G. Garcia, or that, she is
a mere illegitimate sister of the latter, incapable of any
successional rights. 19 On this point, We rule that Preciosa B.
Garcia is prima facie entitled to the appointment of special
administratrix. It needs be emphasized that in the issuance of
such appointment, which is but temporary and subsists only
until a regular administrator is appointed, 20 the appointing
court does not determine who are entitled to share in the
estate of the decedent but who is entitled to the
administration. The issue of heirship is one to be determined
in the decree of distribution, and the findings of the court on
the relationship of the parties in the administration as to be
the basis of distribution. 21 The preference of Preciosa B.
Garcia is with sufficient reason. In a Donation Inter Vivos
executed by the deceased Amado G. Garcia on January 8,
1973 in favor of Agustina B. Garcia, he indicated therein that
he is married to Preciosa B. Garcia. 22 In his certificate of
candidacy for the office of Delegate to the Constitutional
Convention for the First District of Laguna filed on
September 1, 1970, he wrote therein the name of Preciosa B.
Banaticla as his spouse. 23 Faced with these documents and
the presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful
contract of marriage, Preciosa B. Garcia can be reasonably
believed to be the surviving spouse of the late Amado G.
Garcia. Semper praesumitur pro matrimonio. 24
5. Under these circumstances and the doctrine laid down in
Cuenco vs. Court of Appeals, 25 this Court under its
supervisory authority over all inferior courts may properly

decree that venue in the instant case was properly assumed

by and transferred to Quezon City and that it is in the interest
of justice and avoidance of needless delay that the Quezon
City court's exercise of jurisdiction over the settlement of the
estate of the deceased Amado G. Garcia and the appointment
of special administratrix over the latter's estate be approved
and authorized and the Court of First Instance of Laguna be
disauthorized from continuing with the case and instead be
required to transfer all the records thereof to the Court of
First Instance of Quezon City for the continuation of the
proceedings.
6. Accordingly, the Order of Judge Ernani Cruz Pano of
December 17, 1975, granting the "Urgent Petition for
Authority to Pay Estate Obligations" filed by Preciosa B.
Garcia in Sp. Proc. No. Q-19738, subject matter of G.R. No. L42670, and ordering the Canlubang Sugar Estate to deliver to
her as special administratrix the sum of P48,874.70 for
payment of the sum of estate obligations is hereby upheld.
IN VIEW OF THE FOREGOING, the petitions of petitioner
Virginia Garcia Fule in G.R. No. L-40502 and in G.R. No.
L42670 are hereby denied, with costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2211
December 20, 1948
NATIVIDAD I. VDA. DE ROXAS, petitioner,
vs.
POTENCIANO PECSON, Judge of First Instance of Bulacan,
MARIA ROXAS and PEDRO ROXAS, respondents.
Claro
M.
Recto
and
Francisco
A.
Rodrigo
for
petitioner. Estanislao A. Fernandez, Jr., and Gerardo M. Alfonso
for respondents.
FERIA, J.:
This is a petition for certiorari filed against the respondent judge of
the Court of First Instance of Bulacan.
The facts in this case may be summarily stated as follows: Pablo
M. Roxas died leaving properties in Bulacan. The other
respondents Maria and Pedro Roxas, sister and brother
respectively of the deceased, filed on August 3, 1946, a petition
for the administration of the latter's estate, in special intestate
proceeding No. 1707 of the Court of First Instance of Bulacan,
and Maria Roxas was appointed special administratrix upon an
ex-parte petition. On August 10, 1946, the petitioner Natividad
Vda. de Roxas, widow of Pablo M. Roxas, filed a petition for the
probate of an alleged will of her deceased husband, and for her
appointment as executrix of his estate designated is said will, and
the petition was docketed as special proceeding No. 172 of the
same court. In said will the deceased bequeathed one-half of his
estate to his widow, the herein petitioner, and the other half to
Reynaldo Roxas, an adulterous child 9 years old of the decedent.
Upon agreement of both parties, the intestate proceeding No. 170
was dismissed and ordered closed by the court.
In view of the opposition to the probate of the will by the
respondents Maria and Pedro Roxas, the petitioner was
appointed on September 10, 1946, special administratrix and
qualified as such over the objection of the respondents Maria and
Pedro Roxas, who sought the appointment of Maria as such. The
said respondents filed on October 21, 1946, a motion for
reconsideration of the order of the court appointing the petitioner
as special administratrix, with an alternative prayer that Maria
Roxas be appointed as special co-administratrix, which motion
was not acted upon.
After hearing on December 15, 1947, the respondent judge
rendered a decision denying the probate of the will presented by
the petitioner on the ground that the attesting witnesses did not

36
sign their respective names in the presence of the testator, from
which the petitioner has appealed, and the appeal is now
pending.
On December 29, 1947, the respondents Maria and Pedro Roxas
renewed their petition for the appointment of Maria Roxas as
special administratrix or special co-administratrix, and on May 5,
1948, the respondent judge rendered his resolution appointing the
petitioner Natividad I. Vda. de Roxas as special administratrix
only of all the conjugal properties of the deceased, and Maria
Roxas as special administratrix of all capital or properties
belonging exclusively to the deceased Pablo M. Roxas.
The present petition for certiorari has been filed with this Court
against the last order or resolution of the Court of First Instance of
Bulacan based on the ground that the respondent judge acted in
excess of the court's jurisdiction in appointing two special coadministratices of the estate of the deceased Pablo Roxas, one of
the capital or properties belonging exclusively to the deceased,
and another of his conjugal properties with his wife (now widow),
the petitioner.
It is well settled that the statutory provisions as to the prior or
preferred right of certain persons to the appointment of
administrator under section 1, Rule 81, as well as the statutory
provisions as to causes for removal of an executor or
administrator under section 653 of Act No. 190, now section 2,
Rule 83, do not apply to the selection or removal of special
administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and Ona,
53 Phil., 104, 106.) As the law does not say who shall be
appointed as special administrator and the qualifications the
appointee must have, the judge or court has discretion in the
selection of the person to be appointed, discretion which must be
sound, that is, not whimsical or contrary to reason, justice or
equity.
There is nothing wrong in that the respondent judge, in exercising
his discretion and appointing the petitioner as special
administratrix, had taken into consideration the beneficial interest
of the petitioner in the estate of the decedent and her being
designated in the will as executrix thereof. But the respondent's
subsequent act of appointing her as special administratrix only of
the conjugal or community property, and Maria Roxas as special
administratrix of the capital or exclusive property of the decedent,
does not seem to be in conformity with logic or reason. The
petitioner has or claims to have the same beneficial interest after
the decision of the court disapproving the will, which is now
pending on appeal, as she had prior to it, because the decision is
not yet final and may be reversed by the appellate court.
Besides, even if the will is not probated, the widow in the present
case would have, under the law, the right of usufruct over one-half
of the exclusive property of the decedent, besides her share in the
conjugal partnership. The beneficial interest required as a
qualification for appointment as administrator of the estate of a
decedent is the interest in the whole estate and not only in some
part thereof. The petitioner being entitled to one-half in usufruct of
all the exclusive properties of the decedent, she would have as
much if not more interest in administering the entire estate
correctly, in order to reap the benefit of a wise, speedy,
economical administration of the state, and not suffer the
consequences of the waste, improvidence or mismanagement
thereof. The good or bad administration of the property may affect
rather the fruits than the naked ownership of a property.
However, for the decision of the question involved in this
proceeding it is not necessary for us to determine whether or not
the respondent judge has acted with grave abuse of discretion in
rendering the resolution complained of for the reasons just stated,
in view of our conclusion that the respondent judge acted in
excess of the court's jurisdiction in appointing two separate
special administratices of the estate of the decedent: one of the
conjugal or community property and another of the capital or
exclusive property of the deceased Pablo M. Roxas.
According to section 2, Rule 75, taken from section 685 of the
former Code of Civil Procedure, Act No. 190, as amended, "when

the marriage is dissolved by the death of the husband or wife, the

community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse." That is the reason why,
according to section 4, Rule 78, the "letters testamentary, or
letters of administration with the will annexed, shall extend to all
the estate of the testator in the Philippines," and section 6, Rule
79, provides for appointment of one administrator in case of
intestacy, except in certain cases in which two or more joint, but
not separate and independent, administrators may be appointed
under section 3, Rule 82. Therefore the administrator appointed to
administer and liquidate the exclusive property of a deceased
spouse shall also administer, liquidate and distribute the
community property, because the estate of a deceased spouse
which is to be settled, that is, administered, liquidated and
distributed, consists not only of the exclusive properties of the
decedent, but also of one-half of the assets of the conjugal
partnership, if any, which may pertain to the deceased, as
determined after the liquidation thereof in accordance with the
provisions of articles 1421 to 1424 of the Civil Code.
There is absolutely no reason for appointing two separate
administrators, specially if the estate to be settled is that of a
deceased husband as in the present case, for according to
articles 1422 and 1423 of the Civil Code, only after the dowry and
parapherna of the wife and the debts, charges, and obligations of
the conjugal partnership have been paid, the capital or exclusive
property of the husband may be liquidated and paid in so far as
the inventoried estate may reach; and if the estate inventoried
should not be sufficient to pay the dowry and the parapherna of
the wife and the debts, charges and obligations of the partnership,
the provision of Title XVII of the Civil Code relating to concurrence
and preference of credits shall be observed. If two separate
administrators are appointed as done in the present case, in
every action which one of them may institute to recover properties
or credit of the deceased, the defendant may raise the question or
set up the defense that the plaintiff has no cause of action,
because the property or credit in issue belongs to the class which
is being administered by the other administrator, which can not be
done if the administrator of the entire estate is only one.
As under the law only one general administrator may be
appointed to administer, liquidate and distribute the estate of a
deceased spouse, it clearly follows that only one special
administrator may be appointed to administer temporarily said
estate, because a special administrator is but a temporary
administrator who is appointed to act in lieu of the general
administrator. "When there is delay in granting letters
testamentary or of administration occasioned by an appeal from
the allowance or disallowance of will, or from any other cause, the
court may appoint a special administrator to collect and take
charge of the estate of the deceased until the questions causing
the delay are decided and executors or administrators thereupon
appointed," (sec. 1, Rule 81). Although his powers and duties are
limited to "collect and take charge of the goods, chattels, rights,
credits, and estate of the deceased and preserve the same for the
executor or administrator afterwards appointed, and for that
purpose may commence and maintain suits as administrator, and
may sell such perishable and other property as the court orders
sold. A special administrator shall not be liable to pay any debts of
the deceased." (Section 2, Rule 81.)lawphil.net
In view of all the foregoing, we hold that the court below has no
power to appoint two special administratices of the estate of a
deceased husband or wife, one of the community property and
another of the exclusive property of the decedent, and therefore
the respondent judge acted in excess of the court's jurisdiction in
rendering or issuing the order complained of, and therefore said
order is hereby set aside, with costs against the respondents. So
ordered.
Moran, C.J., Paras, Pablo, Perfecto, Bengzon, Briones, Tuason
and JJ., concur.

37

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21917
November 29, 1966
TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y
MONASTERIO. MARCELO PIJUAN, special administratorappellee,
vs.
MANUELA RUIZ VDA. DE GURREA, movant-appellant.
Marcos S. Gomez for petitioner and appellee. Ricardo B. Teruel
for respondent and appellant.
CONCEPCION, C.J.:
This is an appeal, taken by Manuela Ruiz Vda. de Gurrea, from
two (2) orders of the Court of First Instance of Negros Occidental.
In 1932, appellant Manuela Ruiz hereinafter referred to as Mrs.
Gurrea and Carlos Gurrea were married in Spain, where they
lived together until 1945, when he abandoned her and came, with
their son Teodoro, to the Philippines. Here he lived maritally with
Rizalina Perez by whom he had two (2) children. Having been
informed by her son Teodoro, years later, that his father was
residing in Pontevedra, Negros Occidental, Manuela came to the
Philippines, in June, 1960; but, Carlos Gurrea refused to admit
her to his residence in said municipality. Hence, she stayed with
their son, Teodoro, in Bacolod City.
Presently, or on July 29, 1960, she instituted, against Carlos
Gurrea, Civil Case No. 5820 of the Court of First Instance of
Negros Occidental, for support and the annulment of some
alleged donations of conjugal property, in favor of his commonlaw wife, Rizalina. In due course, said court issued an order
granting Mrs. Gurrea a monthly alimony, pendente lite, of
P2,000.00 which, on May 17, 1961, was reduced by the Court of
Appeals to P1,000.00.
Carlos Gurrea died on March 7, 1962, leaving a document
purporting to be his last will and testament, in which he named
Marcelo Pijuan as executor thereof and disinherited Mrs. Gurrea
and their son, Teodoro. Soon thereafter, or on April 24, 1962,
Pijuan instituted Special Proceedings No. 6582 of the Court of
First Instance of Negros Occidental, for the probate of said will.
Thereafter Pijuan was, upon his ex parte motion, appointed
special administrator of the estate, without bond. Oppositions to
the probate of the will were filed by Mrs. Gurrea, her son,
Teodoro, and one Pilar Gurrea, as an alleged illegitimate
daughter of the deceased.
On July 16, 1962, Mrs. Gurrea filed in said Special Proceedings
No. 6582, a motion alleging that the aforementioned alimony,
pendente lite, of P1,000 a month, had been suspended upon the
death of Carlos Gurrea, and praying that the Special
Administrator be ordered to continue paying it pending the final
determination of the case. This motion having been denied in an
order dated February 2, 1963, Mrs. Gurrea moved for a
reconsideration thereof. Moreover, on February 27, 1963, she
moved for her appointment as administratrix of the estate of the
deceased. In an order dated April 20, 1963, said motion for
reconsideration was denied. The lower court, likewise, denied, for
the time being, the motion of Mrs. Gurrea for her appointment as
administratrix, in view of the provision of the will of the deceased
designating another person as executor thereof. Hence this
appeal from said orders of February 2 and April 20, 1963.
Mrs. Gurrea assails as erroneous the order of the lower court
denying her petition for support, as well as that denying its
reconsideration. Both were predicated upon the theory that,
pursuant to Article 188 of our Civil Code (Article 1430 of the
Spanish Civil Code) the support of a surviving spouse constitutes,
not an encumbrance upon the estate of the decedent, but merely
an advance from her share of said estate, and that Mrs. Gurrea is
not entitled to such advance, there being neither allegation nor
proof that she had contributed any paraphernal property to said
estate or that the same includes properties forming part of the

conjugal partnership between her and the deceased. In support of

this view, His Honor, the trial Judge cited the opinion of Manresa
to the effect that
. . . Probado que ni en concepto de capital propio, ni como
gananciales corresponde haber alguno al conjuge sobreviviente o
a los herederos del premuerto, no cabe la concesion de
alimentos, pues estos, en efecto, con arreglo el articulo 1430, son
solo un anticipo del respectivo haber de cada participe.
This has, however, been misconstrued by the lower court. The
foregoing view of Manresa is predicated upon the premise that it
has been proven that none of the properties under administration
belongs to the surviving spouse either as paraphernal property or
as part of the conjugal partnership. Upon the other hand, the
lower court denied support to Mrs. Gurrea because of absence of
proof as regards the status, nature or character of the property
now under the custody of the Special Administrator. Precisely,
however, on account of such lack of proof thereon, we are bound
by law1 to assume that the estate of the deceased consists of
property belonging to the conjugal partnership,2 one-half of which
belongs presumptively to Mrs. Gurrea,3 aside from such part of
the share of the deceased in said partnership as may belong to
her as one of the compulsory heirs,4 if his alleged will were not
allowed to probate, or, even if probated, if the provision therein
disinheriting her were nullified. Inasmuch as the aforementioned
estate is worth P205,397.64, according to the inventory submitted
by the special administrator, it is clear to us that the continuation
of the monthly alimony, pendente lite, of P1,000, authorized in
said Civil Case No. 5820, is fairly justified.
It is next urged by Mrs. Gurrea that the lower court erred in
denying her petition for appointment as administratrix, for, as
widow of the deceased, she claims a right of preference under
Section 6 of Rule 78 of the Revised Rules of Court. In the
language of this provision, said preference exists "if no executor
is named in the will or the executor or executors are incompetent,
refuse the trust, or fail to give bond, or a person dies intestate."
None of these conditions obtains, however, in the case at bar.
The deceased Carlos Gurrea has left a document purporting to be
his will, seemingly, is still pending probate. So, it cannot be said,
as yet, that he has died intestate. Again, said document names
Marcelo Pijuan as executor thereof, and it is not claimed that he is
incompetent therefor. What is more, he has not only not refused
the trust, but, has, also, expressly accepted it, by applying for his
appointment as executor, and, upon his appointment as special
administrator, has assumed the duties thereof. It may not be
amiss to note that the preference accorded by the aforementioned
provision of the Rules of Court to the surviving spouse refers to
the appoint of a regular administrator or administratrix, not to that
of a special administrator, and that the order appointing the latter
lies within the discretion of the probate court, 5 and is not
appealable.6
WHEREFORE, the orders appealed from are hereby modified, in
the sense that Manuela Ruiz Vda. de Gurrea shall receive from
the estate of the deceased a monthly allowance of P1,000.00, by
way of support, from March 7, 1962, and that, in all other
respects, said orders are hereby affirmed, without pronouncement
as to costs. It is so ordered.
Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 21969
September 25, 1924
MAXIMINA TAN, administratrix of the property of the
deceased Go Bung Kiu, plaintiff-appellee,
vs.
GO CHIONG LEE, TIO LIOK, AND CHANGCO and MANUEL

38
GO TIANUY, defendants-appellants.
Fisher, DeWitt, Perkins & Brady for appellants. Del Rosario &
Del Rosario and Palma, Leuterio & Yamzon for appellee.
MALCOLM, J.:
In this action which arose out of the proceedings relating to the
estate of the deceased Go Bung Kiu, the plaintiff, Maximina Tan,
the present administratrix of the estate, seeks to recover from the
defendant, Go Chiong Lee, the administrator whom the plaintiff
succeeded, and the defendants Tio Liok, Ang Changco, and
Manuel Go Tianuy, the bondsmen of Go Chiong Lee, on four
causes of action, amounts totalling P54,700.39. On the trial
court's awarding the plaintiff the sum of P42,849.08, but limiting
the liability of the sureties to P30,000, the defendants appealed.
UNDISPUTED FACTS
The undisputed facts in this case may properly serve as its
background.
During the lifetime of the deceased Go Bung Kiu, Go Chiong Lee
was his encargado. Go Bung Kiu died in China on April 15, 1920.
On April 26, 1920, Go Chiong Lee was appointed special
administrator of the estate, with Tio Liok, Ang Changco, and
Manuel Go Tianuy as sureties on his bond in the sum of P30,000.
On May 25, 1920, Go Chiong Lee's status with reference to the
estate was changed to that of administrator. On the same date,
Go Chiong Lee filed a motion in which he prayed that he be
allowed to operate two stores belonging to the estate, one in the
City of Cebu and the other in the municipality of Toledo, Cebu.
The court granted the administrator the authority to which he
asked, but on the original copy of the order, the judge added in
ink the following words: "Se exige como condicion de continuar
dicho poder condedido al administrador su informe por escrito
que debe presentarse el primero de julio y de cada mes
siguiente." Another bond also in the amount of P30,000 and with
the same sureties was filed by the administrator, and letters of
administration were issued in his favor. Go Chiong Lee continued
to discharge his duties administrator until he was relieved by
Maximina Tan on October 28, 1921. During this period, the
administrator filed one report covering the period from May 26,
1920, to September 30, 1920, another report covering the period
from October 1, 1920, to July 31, 1921, and still a third and final
report.
The committee on claims rendered its report on June 2, 1921,
admitting as proved, claims amounting to P69,029.91. One month
later, the court issued an order of the following tenor:
The administrator is hereby ordered immediately to pay out of the
funds of the estate of the deceased Go Bung Kiu, under
administration, to each and everyone of the persons mentioned in
the report of the committee on claims, attached to the record at
pages 86 and 87, the whole amount appearing therein to have
been allowed by said committee without any preference either as
to the amount, or as to the time of payment between the claims
allowed.
Responding to the report of the committee on claims and the
order of the court, the administrator informed the court on July 19,
1921, that he had paid the creditors of the estate P16,700.39. He
explained how the payments were made, in the following words:
The administrator desires to state that the payments above
specified were made slowly, as the funds in his possession
permitted them and as the creditors came to make collection,
without preference of any kind. These last weeks, he has not
been able to make any payment; and this was due to the fact that
the debtors of the estate, who are many and will be able to pay
when the market shall improve, have not made upon them by the
administrator, and also to the fact that two establishments in Cebu
and Toledo, especially the latter, hardly make any sales, the
administrator having been compelled to close that in Toledo and
to economize in the expenses of the Cebu to prevent losses.
As further undisputed facts there should be appended to the
foregoing narration of events certain figures having to do with the
financial situation of the estate.
The inventory of the estate made by the administrator showed the

value of the merchandise on hand at the time of the death of the

deceased to be P39,281.57, and the outstanding credits to be
P61,534.74, or a combined gross value of P100,816.31. But
according to the public accountant R. C. Pangalinan, the estate
was worth on May 26, 1920, when Go Chiong Lee became
administrator P28,467.51, while it was worth on October 25, 1921,
when he ceased to be administrator P8,693.76, or a loss of
P19,773.75. The debts of the estate allowed by the commissioner
on claims reached to P69,099.91. Sixteen thousand seven
hundred pesos and thirty-nine centavos were distributed among
the creditors by the administrator, while presumably the remaining
debts have not been cancelled. The last report made by the
administrator discloses, however, that there may be P21,009.77
on hand which can be used to satisfy the claimants. The present
administratrix is running the estate with apparently profitable
results.
As further elucidative of the situation, we offer the following table:
Amount claimed by Amount allowed by
Cause of action
plaintiff
trial judge
I
P10,000.00
P1,401.50

Errors ass
appellants
I, II, III, IV,

II

8,000.00

6,375.00

VI, VII. VIII

III

20,000.00

18,372.19

I, II, III IV a

IV
16,700.39
16,700.39
Totals
54,700.39
42,849.08
DISPUTED FACTS
Coming now to the disputed points, we resolve them in order.
First and third causes of action, in relation with errors I, II, III, IV,
and V. At this point, it is well to recall that presumably the
estate lost over P19,000 during the time when it was administered
by Go Chiong Lee, and that on the first and third causes of action
the trial judge found with the plaintiff in approximately an amount
which covered the losses. The basis for this finding was, first, the
lack of authority on the part of Go Chiong Lee as administrator to
run the two stores belonging to the estate of the deceased, and
second, the failure of Go Chiong Lee to render the monthly
reports made a condition of his appointment as administrator.
The permission to operate the stores was granted to Go Chiong
Lee on the same date when he was relieved as special
administrator and appointed "administrador definitivo" of the
estate. He proceeded to act under such authority for over a year
without being challenged by anyone. It would now be
preposterous to suppose that the power to run the stores actually
granted by the trial judge continued merely for an infinitesimal
moment of time on May 25, 1920, between the precise moment
when Go Chiong Lee acted under it as special administrator, and
the succeeding moment when he became the administrator. The
only reasonable deduction is that the powers of the special
administrator having ceased, and that at the same time that they
ceased permission was given to operate the stores, this authority
was intended for the administrator, or if intended for the special
administrator, was transmitted to the general administrator as
soon as he was appointed.
That the attorney of the defendant Go Chiong Lee had knowledge
of the addition to the order of the court naming Go Chiong Lee
administrator, by which the latter was bound to render written
monthly reports of his administration, is established, but that
subsequently the court tacitly modified its order, is likewise
disclosed by the record. The administrator was repeatedly
enjoined to submit accounts without specifying monthly accounts.
On three occasions the administrator rendered his accounts
without protest from any source.
That monthly reports would have possessed any particular virtue
over the reports actually submitted, to place the court on its guard
and thus to protect the estate from losses, is hardly plausible. On
the contrary, that the losses sustained by the estate resulted from
the risk necessarily attending the operation of the two stores, is a
much more reasonable assumption. At least the only testimony

X, XI, and
--------------

39
refuting that of the former administrator comes from one Vidal
Reynes, a tailor by profession, and is not at all impressive.
The standard of responsibility of the administrator is best
measured as in essence the responsibility of a bailee. Like any
bailee, he must pursue his discretion honestly and in good faith,
or he will become personally liable, to those who are interested in
the estate, for waste, conversion, or embezzlement. But where an
administrator, entrusted with the carrying on of an estate, acts in
good faith and in accordance with the usual rules and methods
obtaining in such business, he will not be held liable for losses
incurred. (Schouler on Wills, Executors and Administrators,
Chapter III; Allen and Hill vs. Shanks [891], 90 Tenn., 359.)
We find that the personal responsibility of the former administrator
and the sureties on his bond for losses incurred by the estate
during his administration, has not been proved.
Second cause of action, in relation with errors VI, VII, VIII, and IX.
On this cause of action, the plaintiff sought to recover the value
of 850 sacks of corn which Go Chiong Lee, it is said, failed to
inventory. Related to the point, are legal provisions providing that
the administrator who has qualified shall, within three months
after his appointment, return to the court a true inventory of the
real estate and of the goods, chattels, rights, and credits of the
deceased, which come into his possession or knowledge, and
that the administrator shall be chargeable in his account with the
goods, chattels, rights, and credits of the deceased, which come
into his possession. (Code of Civil Procedure, secs. 661, 662,
668, 673.) The administrator is accountable on his bond along
with the sureties for the performance of these legal obligations.
The issue is squarely one of fact, and as is customary in such
cases, we follow the findings of the trial court if proof to
substantiate such findings appears in the record. Here, such proof
exists, which means that the judgment appealed from must be
affirmed in this respect.
Fourth cause of action, in relation with errors X, XI, and XII.
The law provides how the debts of the estate shall be paid, and
how subsequent to the return of the report of the committee on
claims, the court shall order the payment of the debts and the
distribution of the assets. (Code of Civil Procedure, Chapter
XXXVIII, especially sec. 739.) The committee on claims did in this
case make such a report, showing the debts to come to
P69,099.91. The court did decree payment of the debts in the
order which is hereinbefore quoted. And the defendant did
attempt to comply with the order as appears from his report
likewise hereinbefore quoted in part. The anomaly, however, is
that, while some of the creditors have been paid entirely and other
partially, some of them received absolutely nothing on account of
the hit and miss method followed by the administrator.
The general rule is that a personal representative will be
protected in the payment of a claim which has been duly allowed
or ordered paid by the court, although it should not have been
paid in full, unless it is made to appear that such allowance of the
claim, or order for the payment thereof, was obtained through his
collusion or bad faith. (24 C. J., 452; Hancock vs. Chapman
[1916], 170 Ky., 99; Thomson vs. Taylor [1877], 71 N. Y., 217.)
Keeping the conceded facts and the legal principle in mind, we
have read many times the order of the trial court relating to the
distribution of the assets among the creditors and are still left with
the impression that the administrator, although unwisely,
attempted to follow the order to the best of his ability. Moreover, it
is not at all certain but that the estate will finally show enough on
the profit side of the ledger either to pay all of the creditors to the
full extent of their claims, or to give to most of the creditors who
have not been paid a proportion similar to that of the creditors
who have been paid. In these same proceedings, the
administratrix on her own motion, or the creditors at their initiative,
may recover the excess imprudently paid out to certain creditors.
(2 Schouler on Wills, Executors, and Administrators, pp. 1511,
1512.)
For all the foregoing, the judgment is modified to the extent that
the plaintiff shall only have and recover from the defendants

jointly and severally the amount of P6,375, with legal interest from
the date when the complaint was presented. Without costs. So
ordered.
Johnson, Street, Avancea, Villamor, Ostrand and Romualdez,
JJ., concur.

FIRST DIVISION
[G.R. No. 13910. September 17, 1919. ]
SOCIEDAD DE
LIZARRAGA HERMANOS,
PlaintiffsAppellants, v. FELICISIMA ABADA ET AL., DefendantsAppellants.
Charles C. Cohn for plaintiff and appellant
Crossfield & OBrien for defendants and appellants.
SYLLABUS
1. EXECUTORS AND ADMINISTRATORS; EXPENSES. The
expenses of administration should be those necessary for the
management of the property, for protecting it against destruction
or deterioration, and possibly for the production of fruits; but the
sum expended by an administrator of an extensive administration
of the estates of the decedent can not be considered "expenses
of administration."cralaw virtua1aw library
2. MORTGAGES. That the state grants no power to an
administrator to borrow money upon a mortgage of the real estate
of the decedent is not controverted. Indeed, such an act would be
contrary to the policy and purposes of the administration which
aims to close up, and not to continue an estate.
3. ID.; APPROVAL BY THE COURT. Although the mortgage
was one made by the administrator and approved by the Court of
First Instance, still this approval can not render valid the void acts
of an administrator.
DECISION

MOIR, J. :

This case is before the court on appeal by plaintiffs from a

judgment of the Court of First Instance of Occidental Negros,
Honorable Norberto Romualdez, judge.
For a better understanding of the facts the history of the case is
given.
Francisco Caponong died in October, 1906, owing the plaintiffs a
sum of money which was then less than the amount allowed by
the commissioners.
His widow, Felicisima Abada, was appointed administratrix of the
estate, commissioners to appraise the estate and to pass on the

40
claims against the estate were duly appointed, and plaintiffs
presented their claim which was allowed by the commissioners in
the sum of P12,783.74. The commissioners report was dated in
February, 1909.
The administratrix leased the hacienda [farm] known as
"Coronacion" to Hilario Zayco for a term of years, but afterwards
she married Vicente Alvarez, one of the defendants, and the
lease was transferred to Alvarez by Zayco, October 2, 1908.

mortgage the carabaos then on the hacienda to plaintiffs.

The contract is dated the 27th of April, 1914.
The mortgage of the hacienda was duly executed by Felicisima
Abada for herself and as administratrix, and the guardian of the
children and Vicente Alvarez, the husband of Felicisima Abada,
signed the mortgage which is also dated the 27th of April, 1914.
The carabaos were not mortgaged.

On the 11th of April, 1913, nearly seven years after the death of
Caponong, the plaintiffs herein filed a suit in the Court of First
Instance of Occidental Negros against Felicisima Abada
personally and as administratrix of the estate of Francisco
Caponong, alleging that Francisco Caponong owed plaintiffs
P12,783.74, and that Felicisima Abada in her own name and as
administratrix, had been receiving from the plaintiffs money and
effects from 1908 to 1912 which money and effects were used by
the defendant in "the expense of cultivation and the exploitation of
the Hacienda "Coronacion," and that defendant had delivered to
plaintiffs the sugar produced until the last crop which she refused
to deliver to them. And that due to "los contratiempos agricolas y
a la poca produccion de la hacienda [drought and poor crops of
the farm] , and after deducting for the sugar delivered, the
account of the defendant showed a balance in favor of plaintiffs
on the 27th of August, 1912, of P62,437.15; that of this amount
they were informed the defendant recognized as due from the
estate only "about P14,000" which however had not been paid;
that it had been agreed by Francisco Caponong that the
"amounts" taken should draw interest at the rate of 12 per cent
from the date of each, and that in case it was necessary to bring
suit P1,500 would be paid by defendant to plaintiffs for their
expenses and attorneys fees, and they asked for judgment for
P62,437.15 with interest at 12 per cent and P1,500 for attorney s
fee.

The compromise was approved by the court as well as the

mortgage.

A copy of the account of the administratrix, dated August 27,

1912, showing the same balance due plaintiffs, seems to have
been filed with that suit.

The court granted the attachment order the 24th of July, 1916,
and the provincial sheriff attached one parcel of land, the growing
crops, certain products of the soil, and various animals.

The defendants answer in that case (No. 969, Neg. Occi.) admits
she owed P8,555.78 as administratrix, and alleges that the
balance was due by her personally.

On the 16th of February, 1917, the plaintiffs filed a motion in court

alleging that the property mortgaged to secure their debt was not
sufficient to secure the debt that defendants, with the intention of
prejudicing the interest of the plaintiffs, were negligent in the
conservation and care of the property, and they asked the court to
appoint a receiver for the property that was mortgaged. The court
granted this motion on the 20th of February, 1917, as to all the
property attached, and on the 26th of February, extended the
receivership to all the mortgaged property.

The guardian of the minor children of Francisco Caponong asked

permission of the court to intervene in that suit, and this being
granted, he denied the claim under oath, and alleged that the
estate of Francisco Caponong did not owe plaintiffs anything.
On the 25th of August, 1914, the parties, including the guardian of
the minors, presented a motion in court stating that they had
made an amicable settlement of the litigation, and prayed the
court to dismiss the action, which was done.
The record shows that the plaintiffs in that suit had a motion
pending in the intestate proceedings of Francisco Caponong,
petitioning the court to the same effect as the complaint in suit No.
969.
The settlement agreed upon was, briefly, that the defendants,
including the guardian of the minor children, "recognized that the
deceased Francisco Caponongs estate was indebted to the
plaintiffs, according to a liquidation of the accounts on the 30th of
June, 1913, in the sum of P68,611.01, which was to be paid with
10 per cent interest in seven equal annual installments ," and to
secure this debt, the defendants agreed to give plaintiffs a first
mortgage on all the property of Francisco Caponong, except the
growing sugar cane, and on all the property belonging exclusively
to Felicisima Abada, and the defendants agreed to secure judicial
approval of the settlement. The defendants also agreed to

The mortgage given was not recorded in the registry of property

up to the time of the institution of this suit, June 24, 1916.
Coming now to the present action, the plaintiffs allege in the
complaint in this suit, the former suit and its settlement with
judicial approval; the amount due thereunder; i. e., P68,611.01;
that defendants had let two installments go by without paying
anything; that the amount due them with accrued interest was
P90,383.49; that besides the property mortgaged, as per Exhibit
B, another parcel of land was mortgaged; and that defendants
promised to mortgage the carabaos on the hacienda
"Coronacion," and that this promise was one of the motives and
considerations inducing the plaintiffs to accept the compromise
agreement, but that defendants refused to sign the agreement
mortgaging the carabaos with the object and intent of reducing
the security of plaintiffs; that defendants were about to transfer
their property not mortgaged, and they prayed for an attachment
on property of defendants not to exceed P20,000 in value, and for
judgment for P90,383.49 with interest, and that if this amount
should not be paid that the mortgaged property be sold, and if not
sufficient to pay the debts, that the property levied on under the
attachment be sold.

The receiver took charge of the property and the defendants were
ousted from the house they had been occupying on the premises.
The defendants, Felicisima Abada, administratrix, and Januario
Granada, the guardian, filed an amended answer in which they
allege their representative capacity; that the claim of the plaintiffs
against the intestate proceedings of Francisco Caponong had
been allowed in the sum of P12,783.74 by the commissioners;
that the property belonged to the children of the deceased; that
the only interest of Felicisima Abada personally was her
usufructuary interest in one-sixth of the property; that all the
property was in custodia legis, and could not lawfully be attached;
that the administratrix had not contracted any other obligation,
and that, if any existed, it was the personal debt of her present
husband, Vicente Alvarez; that Exhibits A and B, (the compromise
agreement and the mortgage executed in conformity therewith)
made a part of the complaint, were obtained through fraud and
false representation; that the approval of the court was obtained
through fraud and deceit, and was illegal and of no value; that
defendants have never attempted to sell or conceal their property,

41
and prayed the court to declare Exhibits A and B null and void;
and that the attachment was malicious and illegal, and they
presented a counterclaim based on the wrongful issuance, on
false affidavits of the attachment, laying their damages in the sum
of P89,960 for which they asked judgment. And a second
counterclaim was presented based on the unwarranted
appointment of a receiver for property already in custody of the
court, through the administratrix and they alleged their damages
in this count in the sum of P28,120.
The Honorable Norberto Romualdez, judge, in his decision largely
sustained defendants claim, and declared that plaintiffs should
pay as damages
"For improperly causing the appointment of a

subject-matter of this action.

"5. The court erred in finding that just and sufficient grounds did
not exist for the appointment of a receiver for the properties which
are the subject-matter of this action.
"10. The court erred in finding that the defendants, or either or
any of them, were damaged in the sum of P5,000 by reason of
injury to the sugar lands which are the subject-matter of this
action.
"12. The court erred in declining and refusing to foreclose the
mortgages which are the subject-matter of the present action.
"13. The court erred in reducing the indebtedness of the Estate of
Francisco Caponong from P90,383.49 to P11,392.99.

receiver P 500.00
"For the attachment of carabaos, etc. 500.00
"For damages to the sugar because of the
attachment and the appointment of a receiver 4,462.50
"For damages to land by reason of being left to
grow up in bushes 5,000.00

"18. The court erred in absolving from the complaint herein the
defendant Januario Granada as guardian of the minors, Juan
Buenaventura, Jose, Nicanor and Carlos Caponong y
Abada."cralaw virtua1aw library
As to the first error. Exhibit A was the compromise agreement
made in action No. 969, Lizarraga Hermanos against Felicisima
Abada personally and as administratrix, in which the guardian of
the minor children intervened, as defendant, by permission of the
court. Exhibit B was the mortgage given to secure the amount
agreed upon in that settlement.

"For damages to palay crop 2,800.00

_________
13,262.50"
A further sum of P1,000 damages was awarded to Felicisima
Abada for having been put out of her house when the receiver
was appointed.
The attachment was dissolved and the receiver discharged, and
he was ordered to return the property to defendants.
Judgment was given for the plaintiffs to recover from defendant
administratrix the sum of P8,555.78 with interest which, added to
the principal, brought the amount to P11,392.99 with 10 per cent
interest on that sum till paid.
A personal judgment was also given plaintiffs against the
defendants Abada and Alvarez for P79,970.21.
The plaintiffs claim against the guardian of the children was
dismissed.
From this judgment Felicisima Abada appealed personally and as
administratrix alleging that the trial court should have granted
greater damages. The questions presented by her appeal will be
sufficiently treated in the appeal of plaintiffs.
The plaintiffs allege nineteen different errors of the trial court. It
seems that all the questions are involved in errors Nos. 1, 2, 4, 5,
10, 12, 13 and 18, which are as follows:jgc:chanrobles.com.ph
"1. The court erred in holding that the obligation set forth in
Exhibits A and B should be understood as limited to the sum of
P8,555.78, instead of the sum of P68,611.01 therein stated.
"2. The court erred in reducing the amount of the mortgage,
Exhibit B, from P68,611.01 to P8,555.78.
"4. The court erred in finding that just and sufficient grounds did
not exist for the attachment of the properties which are the

The claim of the plaintiffs herein against the estate of Francisco

Caponong had been fixed by the commissioners. The amount so
determined was all the estate owed plaintiffs. The court says in its
decision that in approving the settlement of action No. 969, its
approval was meant to include only the amount actually due by
the estate, and that the balance of the claim was intended to be
approved as against Felicisima Abada personally.
It is argued that "this is sheer and unequivocal repudiation of a
solemn and formal act" of the court.
The record in case No. 969 is presented as Exhibit C by plaintiffs.
In their complaint in that action (which suit should never have
been filed as all the property was in the custody of the court),
plaintiffs allege that their original claim against the estate of
Francisco Caponong was only P12,783.74, and that the balance
of the claim was due from Felicisima Abada as administratrix and
personally without stating how much was owed by her personally
and how much was owed by her as administratrix.
Whether the court in approving the compromise intended to hold
the defendant estate liable only for the original debt, and
defendant Abada for the balance, is not material. The language
used by the court is very clear and seems to be an outright
approval of the "transaccion" (compromise), and would, so far as
the language goes, leave no room for doubt of the courts
approval of the agreement in full and as written.
But could the court approve such an agreement? Could the court
authorize a mortgage of the estate?
The law declares that commissioners shall pass upon all claims
against the estate. They had done so in this case. The law fixed
the limit of the estates liability. The court could not charge it with
debts that were never owed by it. The administratrix could only
charge the estate with the reasonable and proper expenses of
administration.
The estate owed plaintiffs less than P13,000 when the
commissioners passed on their claim. Part of this has been paid,
and there was a balance due plaintiffs of P8,555.78 at the time of

42
the trial, plus interest. The plaintiffs, after their claim had been
presented and allowed by the commissioners, made advances to
the administratrix till their claim was more than P68,000.
It is urged that the major part of this debt of P68,000 is
administration expenses, and as such is chargeable against the
assets of the estate. No reason is given why the expense of
administration should be so great, and the evidence fails to
sustain this position.
The administration expense would be the necessary expenses of
handling the property, of protecting it against destruction or
deterioration, and possibly producing a crop, but if plaintiffs,
holding a claim originally for less than P13,000 against the estate,
let the administratrix have money and effects till their claim grow
to P68,000 they can not be permitted to charge this amount as
expense of administration. They might be allowed to charge it
against the current revenue from the hacienda or the net
proceeds of the "exploitation of the hacienda" for which it was
obtained and used, as plaintiffs allege, but it cannot relate back to
the presenting of their claim to the commissioners, and be a
charge against the inheritance of the heirs, or even a claim to
prorate with other creditors claims allowed by the commissioners.
By expense of administration we understand to be the reasonable
and necessary expense of caring for the property and managing it
till the debts are paid, as provided by law, and of dividing it, if
necessary, so as to partition it and deliver to the heirs.
The court could not approve a settlement saddling upon the
estate debts it never owed, and if it did, its approval would be a
nullity.

the policy and purpose of administration, which aims to close up,

not to continue an estate. . . ."cralaw virtua1aw library
In 151 N. Y. Reports, Duryea v. Mackey, it is said at p.
207:jgc:chanrobles.com.ph
"The mortgage executed by the temporary administrator in this
case which purported to bind the whole estate, was therefore
ineffectual to charge the interest of the devises in remainder,
unless the order of the surrogate authorizing the mortgage was a
lawful exercise of his jurisdiction or unless they have estopped
themselves from questioning its validity. It is very clear that the
order of the surrogate was without jurisdiction."cralaw virtua1aw
library
The learned counsels for appellants in their brief do not cite a
single authority for the placing of a mortgage on an estate in
administration, and none has been found. It must be held that the
mortgage was void.
The court should have closed up the estate.
So many courts seem to violate the law on this point that it may
serve a useful purpose to call attention to our statutes on the
subject of estates.
Section
743
of
the
Code
declares:jgc:chanrobles.com.ph

of

Civil

Procedure

The contract was clearly a dead letter, and the approval of the
court could not breathe the breath of life into it.

"The court, at the time of granting letters testamentary or of

administration, shall allow to the executor or administrator a time
for disposing of the estate and paying the debts and legacies of
the deceased person, which time shall not, in the first instance,
exceed one year; but the court may, on application of the
executor or administrator, from time to time, as the circumstances
of the estate require, extend the time not exceeding six months at
a time, nor so that the whole time allowed to the original executor
or administrator shall exceed three years."cralaw virtua1aw library

That the mortgage given at the same time and as a result of the
agreement was without legal warrant is equally clear. No
mortgage can be placed by an administrator on the estate of a
descendant, unless it is specifically authorized by statute.

Section 745 provides that if the executor or administrator dies, the

new administrator appointed shall give the same notice for an
extension of time which shall not exceed six months beyond the
time which might have been allowed the first administrator.

There is no statute in the Philippine Islands authorizing it.

While these sections may be considered as only directory, all

Courts of First Instance should exert themselves to close up
estates within twelve months from the time they are presented,
and they may refuse to allow any compensation to executors and
administrators who do not actively labor to that end, and they may
even adopt harsher measures.

To give effect to the compromise as written would result in great

wrong, and destroy every chance the minor children had to
participate in the inheritance of their father.

"It may be stated as a general proposition, that neither executors,

unless specially authorized by will, nor administrators, have the
power to bind the estate of the deceased by borrowing money."
(The American Law of Administration, Woerner, Vol. 2, sec. 345.)
In the case of Johnson v. Davidson, the Supreme Court of Illinois
(Vol. 162, at page 235) said:jgc:chanrobles.com.ph
"The argument on behalf of appellants seems to proceed upon
the supposition that an administrator may bind the heirs by his
mortgage of real estate for the purpose of raising money with
which to pay the debts of the ancestors, and that a court of equity
will sustain the mortgage, or a title derived under it, if it be shown
that the borrowed money was honestly applied to the payment of
debts. No authority is cited in support of this position, and none,
we believe, can be found. (See also Smith v. Hutchinson, 108 Ill.,
at p. 668.)"
In the case of Black v. Dressels Heirs, the Supreme Court of
Kansas (Vol. 20, at page 154) said:jgc:chanrobles.com.ph
". . . That the statute grants no power to an administrator to
borrow money upon a mortgage of the real estate of the
decedent, is not controverted. Indeed, such an act is foreign to

The second assignment of error is that the court should not have
reduced the amount of the mortgage (Exhibit B) from P68,611.01
to P8,555.78. The court did err, but its error consisted in not
declaring the mortgage void.
The court was without jurisdiction to approve the mortgage in the
first place, and its approval was a nullity. Plaintiffs claim against
the estate was P8,655.78 with interest as added by the court. This
claim should be paid pro rata with any other unpaid claims against
the estate.
The other errors of appellant need only brief consideration.
That an attachment should not have been levied on the carabaos
in administration is too plain to need discussion. If they were in
the name and possession of the administratrix, they were in
custodia legis, and could not be lawfully attached. The plaintiffs as
creditors of the estate could have petitioned the court to compel
the administratrix to take any steps necessary and proper to

43
protect the interest of all concerned.
The appointment of a receiver was equally unjustified and
improper. The property being under the courts control, the court
should have removed the administratrix, if necessary, and it could
have taken other means to protect the creditors and wind up the
estate.
The plaintiffs assign as error No. 10 that the court should not have
allowed the sum of P5,000 damages for injury to the sugar lands.
The evidence as to this damage is not considered as clear and
satisfactory as it should be.
It seems this claim should have been wholly denied by the trial
court, and we think the judgment in favor of the administratrix and
against the plaintiffs should be reduced from P13,262.50 to
P8,262.50 with interest as provided therein. The other damages
allowed by the trial court are so fully sustained by the evidence, it
is not necessary to discuss them.
With the above modification and with a declaration that the
mortgage, exhibit B, was absolutely void, the judgment appealed
from is affirmed, with costs against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street, Malcolm and
Avancea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6637
September 30, 1954
WARNER BARNES AND CO., LTD., plaintiff-appellee,
vs.
LUZON SURETY CO., INC., defendant-appellant.
Tolentino and Garcia and Domingo R. Cruz for appellant. Hilado
and Hilado and Reyes and Castro for appellee.
PARAS, C.J.:
On September 17, 1952, the plaintiffs, Warner, Barnes and Co.,
Ltd., filed a complaint in the Court of First Instance of Negros
Occidental against the defendant, Luzon Surety Co., Inc., of the
recovery of the sum of P6,000, plus the costs and P1,500 for
attorney's fees. The basis of the complaint was a bond in the sum
of P6,000 filed by Agueda Gonzaga as administratrix of the
Intestate Estate of Agueda Gonzaga on or about January 6, 1951,
in Special Proceedings No. 452 of the Court of First Instance of
Negros Occidental, the condition being that said bond would be
void if the administratrix "faithfully prepares and presents to the
Court, within three months from the date of his appointment, a
correct inventory of all the property of the deceased which may
have come into his possession or into the possession of any other
person representing him according to law, if he administers all the
property of the deceased which at any time comes into his
possession or into the possession of any other person
representing him; faithfully pays all debts, legacies, and bequests
which encumber said estate, pays whatever dividends which the
Court may decide should be paid, and renders a just and true
account of his administrations to the Court within a year or at any
other date that he may required so to do, and faithfully executes
all orders and decrees of said court." It was alleged in the
complaint that the plaintiff had a duly approved claim against the
Estate of Aguedo Gonzaga in the sum of P6,485.02, plus 2 per
cent annual interest compounded monthly from October 1, 1941;
that the administratrix violated the conditions of her bond "(a) by
failing to file an inventory of the assets and funds of the estate
that had come into her hands, more particularly, the sum of
P67,861.22 that she had received form the United States

Philippine War Damage Commission; (b) by failing to pay or

discharge the approved claim of the plaintiff; (c) by failing to
render a true and just account of her administration in general,
and of the said war damage payments in particular."; that the
defendant, as surety in the bond, failed to pay to the plaintiff,
notwithstanding the latter's demand, the sum of P6,000, in partial
satisfaction of plaintiff's unpaid claim which, after deduction the
sum of P3,000 previously paid upon account by the administratrix,
amounted to P8,186.68 as of August 31, 1952.
The defendant filed an answer setting up the special defenses
that the complaint did not state a cause of action; that its
maximum liability under the surety bond is P6,000; that if it were
not for the untimely death of the judicial administratrix, she would
have been able to fully comply with her duties and obligations;
that the administratrix, up to her death, had not yet been
authorized by the court in Special Proceedings No. 452 to pay
plaintiff's claim; that the defendant's liability had been
extinguished; that damages or attorney's fees cannot be
recovered under the surety bond.
On January 6, 1953, the plaintiff filed a motion for summary
judgment, alleging that "the special defenses relied upon by the
defendant in her Answer raise only questions of law, and the
plaintiff believes that said defendant cannot produce counteraffidavits that would raise any 'genuine issues as to any material
facts.' This motion was accompanied by Exhibits "A" to "H",
Exhibits "A" being an affidavit of Atty. Luis G. Hilado who signed
the complaint.
As the defendant did not file counter-affidavits so as to raise
genuine issues as to any material fact, although a copy of the
motion for summary judgment was served upon it eleven days
prior to the date of the hearing thereon, the Court of First Instance
of Negros Occidental rendered on January 17, 1953, a summary
judgment sentencing the defendant to pay to the plaintiff the sum
of P6,000, P900 for attorney's fees, plus the costs. From this
judgment the defendant appealed.
Under the first assignment of error, the appellant contends that
the lower court had no jurisdiction to pass upon its liability under
the bond in question, because it is only the probate court that can
hold a surety accountable for any breach by the administratrix of
her duty, citing the case of Mendoza vs. Pacheco, 64 Phil., 134. It
is, however, noteworthy that while the citation is to the effect that
the probate court has jurisdiction over the forefeiture or
enforcement of an administrator's bond, it was not held therein
that the same matter may not be litigated in an ordinary civil
action brought before the court of first instance.
Under the second assignment of error, the appellant claims that
there are genuine controversies between the parties litigant, and
that, contrary to the allegations of the complaint, the administratrix
made a return to the court of the war damage payments she
received; the administratrix cannot be charged with having failed
to pay plaintiff's claim because there is no showing that she was
ever authorized to pay approved claims; the administratrix may be
presumed to have rendered an accounting of her administration,
likely in 1948, in accordance with section 8 of Rule 86 of the
Rules of Court. In answer, it is sufficient to state that the
allegations that the administratrix failed to file an inventory, to pay
the plaintiff's claim, and to render a true and just account of her
administration, are factual and remained uncontroverted by
counter-affidavits which the appellant could have easily filed.
It is also argued for the appellant that the supporting affidavit
Exhibit "A" is insufficient, being signed merely by the lawyer, and
not by a party to the case or an officer of the plaintiff firm. This is
without merit, since Exhibit A contains an express statement that
the affiant, Atty. Luis G. Hilado, had "personal knowledge of the
facts" alleged therein; and this cannot be negatived by appellant's
speculation to the contrary.
Under the third and fourth assignments of error, it is insisted for
the appellant that the bond in question was executed in favor of
the Republic of the Philippines and that the proper procedure
would seem to be that it might be enforced in the administration

44
proceedings were it was filed. This view is likewise not tenable.
Though nominally payable to the Republic of the Philippines, the
bond is expressly for the benefit of the heirs, legatees and
creditors of the Estate of the deceased Aguedo Gonzaga. There
is no valid reason why a creditor may not directly in his name
enforce said bond in so far as he is concerned.
Under the fifth assignment of error, it is alleged that the plaintiffs
should have first filed a claim against the Estate of the deceased
administratrix Agueda Gonzaga, in conformity with section 6 of
Rule 87 of the Rules of Court providing that "Where the obligation
of the decedent is joint and several with another debtor, the claim
shall be filed against the decedent as if he were the only debtor,
without prejudice to the right of the estate to recover contribution
from the other debtor." Apart from the fact that his defense was
not pleaded either in a motion to dismiss or in the answer and
was therefore waived (section 10, Rule 9 of the Rules of Court), it
appears that even as late as September 17, 1952, when the
present complaint was filed, (more than two years after the death
of Agueda Gonzaga), there were no proceedings for the
administration of her estate, with the result that section 6 of Rule
87 loses its applicability. Moreover, it is to be noted that the
appellant had also chosen to file a third-party complaint in the
present case against Romualdo Araneta, joint and several
counter-guarantor of the deceased administratrix, instead of
presenting a claim against the latter's estate.
In its sixth assignment of error, the lower court is alleged to have
erred in sentencing the appellant to pay attorney's fees in the sum
of P900, in excess of the limit of its bond. This contention is
tenable. Under section 3 of Rule 36 of the Rules of Court, a
summary judgment may be rendered upon proper motion except
as to the amount of damages.1wphl.nt
There being no proof regarding the amount of attorney's fees
claimed by the plaintiff, no judgment thereon may be rendered
herein. It is, however, argued by the counsel for appellee that said
fees are in pursuance of article 2208 of the Civil Code, providing
that attorney's fees cannot be recovered except "where the
defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff's plainly valid, just and demandable claim"; and
it alleged in the complaint that the appellant had so acted in this
case. While the provision cited authorizes the collection of
attorney's fees under the situation contemplated herein, it does
not dispense with the effect of section 3 of Rule 36.
Wherefore, it being understood that the defendant-appellant is
sentenced to pay to the plaintiff-appellee only the sum of P6,000,
plus the cost, the same is hereby affirmed.
Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Concepcion and Reyes, J.B.L., JJ., concur.

G.R. No. 31860, Wilson v. Rear et al., 55 Phil. 44

content follows
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
October 16, 1930
G.R. No. 31860
In the matter of the Estate of Charles C. Rear, deceased. J.J.
WILSON, administrator-appellee,
vs.
M. T. REAR, ET AL., heirs-appellants.
J. A. Wolfson and Lionel D. Hargis for appellants. Juan S. Alano
and Pastor Kimpo for appellee.
STATEMENT
July 14, 1925, Charles C. Rear was murdered by some Moros on
his plantation situate in the interior of the Province of Cotabato at
an isolated place, without communication except by river, about
17 kilometers from the nearest settlement of Pikit, and about 70
kilometers from the town of Cotabato. The whole plantation
consisted of public lands. J.J. Wilson qualified as special

administrator of the estate on November 17,1925. Later, the

property of the estate was appraised at P20,800, of which the
commissioners filed an inventory and report, which was also
signed by Wilson. January 4,1927, the commisioners made and
filed a report of claims against the estate, but by reasons of the
fact that it was claimed and alleged that the administrator did not
have any funds to pay, on March 30, 1927, the court ordered the
administrator to sell a portion of the property. April 26, 1927, and
with the consent of the heirs, a petition was made for authority to
sell, under sealed proposal, all the property of the estate, with a
view of closing the administration. October 10,1927, the court
granted this petition, and after due notice, the public sale took
place, and the property was sold to Wm. Mannion for P7,600.
April 26,1927, Wilson submitted a report covering his
administration to that date, which was approved and later set
aside on motion of the heirs of the deceased. March 23, 1928,
Wilson filed his final account which later was amended on June
20,1928, to which the heirs made numerous and specific
objections, and after a hearing, the court approved the account as
filed. From which the heirs of the deceased appealed and assign
the following errors:
I. The lower court erred in approving the final amended account of
the administrator for the following reasons:
(a) That the alleged disbursements made by the special
administrator and the administrator were far in excess of the
amount required to preserve the estate;
(b) That no authority being asked for or granted by the court, all
loans or advances, made to the estate, were made contrary to law
and are not legal charges against the estate (Trs., p. 37).
(c) The court erred in admitting, over objection, Exhibits D, E and
F.
(d) That Wilson, as special administrator and as administrator,
was neglectful and imprudent and he committed waste. He is,
therefore, liable.
II. The lower court erred in refusing to allow the cross-examination
and direct examination of witnesses.
III. The lower court erred in denying the request for a reasonable
continuance in order to obtain depositions.
Separate Opinions
JOHNS, J.:
It appears from the first inventory of December 27, 1925, that the
assets of the estate, including real property, coconut trees, and
houses were P15,300, and that the personal property was valued
at P5,250, which included 80 head of cattle, carabao and horses
of the value of P4,000. Although he was appointed special
administrator on November 17, 1925, he never made any report
or filed any account of any kind until 1927. Neither did he apply to
or obtain an order from the court of any nature during that period,
and it appears that the attention of the court was for the first time
called to the administration of the estate when the commissioners
on claims asked to have their fees paid; otherwise, the court
never made any order of any kind from December 27, 1925, to
April, 1927. It also appears that at the time of his death, the only
debts against the deceased were one in favor of Sewal Fleming
which then amounted to P800, and one in favor of J. S. Alano for
P500. It appears from the amended final report that in the course
of administration, the administrator received the following
amounts from the specified sources:
1925
Nov. 30,
Hogs sold (see plant. book)
P108.50
Sales store (see plant. book)
38.02
Dec. 31,
Sundry products sold (see plant. book) 217.50
Old debt collected
6.00
1926
Jan. 31,
Sundry farm products
76.15
Sales store
104.58
Feb. 28,
Sundry products
130.00
Sales store
87.95
March 31, Sundry products
3.00

45

April 30,
May
June 30,
July
Aug.
Sept.
Oct.
Nov.
Dec.
1927
Jan.
Feb.
Mar.
Apr.
May
June
July
Aug.
Sept.
Oct.

Sales store
Products
Store
None (Store discontinued)
Products
Do
Do
Do
None.
Do.
Do.

53.12
117.00
.25

Products
Do
Products
Cash received from Constabulary
Products
Do
Do
Carabao sold
Two steers sold
Hogs sold
Few nuts sold
Two steers sold
Nuts sold
$50 U. S. Liberty Bond & Interest
The total of which is

16.00
166.60
15.00
20.91
13.50
5.00
10.00
100.00
160.00
79.50
8.00
180.00
12.00
127.52

2.20
29.75
12.80
18.40

1,919.25
From which it appears that on November 30,1925, the
administrator sold hogs for P108.50; in July, 1927, he sold one
carabao for P100 and two steers for P160; in August he sold hogs
for P79.50; and in September he sold two steers for P180.
Strange as it may seem, the above is the only account which was
ever rendered of the livestock which was appraised at P4,000,
and yet no specific objection was ever made or filed to the final
account of the administrator for his failure to render any other or
different account of the livestock. Even so, it appears that the sale
to Mannion was made by and with the consent of the heirs, and
that the deed was intended to convey all of the property to him
described in the inventory, except that of a perishable nature and
some personal effects. It further appears from the amended
account that the total amount of cash received by the
administrator, including the sale to Mannion was P9,519.25, and
that the total amount of cash disbursed by the administrator was
P11,328.94, leaving a deficit or balance due and owing from the
estate of P1,809.69. It also appears that the amount of Fleming's
note at the time it was paid was P1,003.40, and that the taxes for
the years 1925,1926, and 1927 amounted to P152.14, and the
claim of J. S. Alano amounted to P500. That is to say, at the time
they were paid, the actual claims against the deceased was P
1,655.54. Here, it will be noted that the value of the personal
property of the estate at the time of Wilson's appointment,
appearing over his own signature was P5,800 which included 80
head of cattle, carabao and horses of the value of P4,000. That is
to say, at the time Wilson was appointed, his estate had personal
property of the value of P5,800, and when the amended final
account was filed the actual debts of the deceased, including
interest and accumulated taxes, was P1,655.54.
In this situation, it was the legal duty of the administrator to at
once apply to the court for an order to sell the personal property
to pay the debts of the deceased and the expenses of
administration. It also appears from the amended final account
that the expenses charged by the administrator was P750.94; that
the court expenses, including attorney's fees was P693.20; and
that the claims of the commisioners was P322.90, the total of
which is P1,767.04. That is to say, that the total of all claims
against the deceased, including interest and taxes was

P1,655.54, and that the whole amount of the court costs and
expenses of administration was P1,767.04, the total of which is
P3,422.58. That is to say, at the time of his appointment, it
appears over the administrator's own signature that the value of
the personal property of the deceased which came into his
possession was P5,800, and the whole amount of claims against
Rear at the time of his death and the court costs and expenses of
administration was P3,422.58. That is to say, if the personal
property of the estate had been promptly sold, when it should
have been, and sold for its appraised value, all the debts of the
deceased and the court costs and expenses of administration
would have been paid, and the estate would have a balance left
of P2,377.42. Instead of doing that, and without any order,
process or authority of the court the administrator, as appears
from his amended final account, continued the operation of the
plantation and the employment of Fleming as manager at a salary
of P200 per month, and a large number of men, so that at the
time of the filing of the amended final account, the total expense
for labor was P2,863.62, and the amount of the manager's salary
was P4,533.33, the net result of which was that all of the property
of the estate was consumed, lost, or destroyed, leaving a deficit
against the estate of P1,809.69. Whereas, if the administrator had
followed the law and promptly sold the personal property, all of
the debts of the estate would have been paid, and it would have a
cash balance in its favor of P2,377.42, and all of its real property
left, which was appraised at P15,000.
It is but fair to say that Wilson's place of business, which was in
Zamboanga, is at least 300 kilometers from the plantation, and
that he declined to serve as administrator and only accepted it
under pressure. That in legal effect he operated and left the
management of the plantation largely in the discretion of Fleming,
and that he personally had but little, if anything, to do with the
administration, and it does not appear that he was a party to any
fraud. But even so, he was appointed and qualified as
administrator, and the law imposed upon him legal duties and
obligations, among which was to handle the estate in a businesslike manner, marshal its assets, and close the estate without any
unreasonable or unnecessary delay. He was not appointed to act
for or on behalf of the creditors, or to represent the interests of the
heirs only. He should have administered the affairs of the estate
for the use and benefit alike of all interested persons, as any
prudent business man would handle his own personal business.
When appointed, it is the legal duty of the administrator to
administer, settle, and close the administration in the ordinary
course of business, without any unnecessary delay. Neither does
an administrator, in particular, without a specific showing or an
order of the court, have any legal right to continue the operation of
the business in which the deceased was engaged, or to eat up
and absorb the assets of the estate in the payment of operating
expenses. Yet, in the instant case, the administrator on his own
volition and without any authority or process of court continued
the operation of the plantation, and in the end, as shown by his
own report, the estate, which was appraised at P20,800, with
actual debts of the deceased of only P1,655,54 was all wiped out
and lost, and left with a deficit of P1,809.69.
The law does not impose upon an administrator a high degree of
care in the administration of an estate, but it does impose upon
him ordinary and usual care, for want of which he is personally
liable. In the instant case there were no complications of any kind
and in the usual and ordinary course of business, the
administrator should have wound up and settled the estate within
eight months from the date of his appointment.
Ruling Case Law, vol. 11, section 142, says:
Winding up Business An executor or administrator ordinarily
has no power to continue the business in which the decedent was
engaged at the time of his death; and this is true although he acts
in the utmost good faith and believes that he is proceeding for the
best interests of the estate. The penalty for continuing a business
of the decedent without authority is the imposition of a personal
liability on the executor or administrator so doing for all debts of

46
the business. The normal duty of the personal representative in
reference to such business is limited to winding it up, and even
where the beneficiaries are infants the court cannot authorize the
administrator to carry on the trade of the decedent. However, an
exception to the general rule is sometimes recognized; and so it
has been held that in order to settle an estate the personal
representative may, in some cases , be permitted to continue a
business for a reasonable time. For example, such personal
representative when authorized to postpone the sale of the
testator's effects may generally carry on the business for a
reasonable time with a view to its sale as a going concern. Even
in such cases the personal representatives are not, however,
entitled to embark in the business more of the testator's property
than was employed in it at his death. (Citing numerous
authorities.)
The same principle is also laid down in Cyc., vol., 18,p. 241,
where it is said:
C. Engaging in Business 1. GENERAL RULE. The general rule
is that neither an executor nor an administrator is justified in
placing or leaving assets in trade, for this is a hazardous use to
permit of trust moneys; and trading lies outside the scope of
administrative functions. So great a breach of trust is it for the
representative to engage in business with the funds of the estate
that the law charges him with all the losses thereby incurred
without on the other hand allowing him to receive the benefit of
any profits that he may make, the rule being that the persons
beneficially interested in the estate may either hold the
representative liable for the amount so used with interest, or at
their election take all the profits which the representative has
made by such unauthorized use of the funds of the estate.
Even so, considering the fact that Wilson's home and place of
business was 300 kilometers from the plantation, and that in the
very nature of things, he could not give the business of the estate
his personal attention, we are disposed to be more or less lenient,
and to allow him the actual operating expenses of the plantation
for the first eight months of his appointment amounting to
P2,257.45. Although the expense account of the administrator
and the claims of the commissioners are somewhat high, we are
also disposed to allow those claims. That is to say, in his final
account, the administrator should have credit for the following
items:
As stated, it appears from his report that the administrator in the
course of administration received P1,919.25 from the sale of
personal property. This with the P7,600 which he received from
His personal charges and expenses
Court expenses, including attorney's fee
Claims of the commissioners
Expenses for and on account of operation for the first eight months
Debts against the deceased, including taxes
or a total of
the remaining assets sold to Mannion make a total of P9,519.25
from which should be deducted P5,680.03 for and on account of
the items above stated, leaving a balance due and owing from the
administrator to the heirs of the deceased of P3,839.22.
As stated, it is the duty of the administrator of an estate to
represent and protect the interests of all interested persons,
including the heirs of the deceased. It is very apparent upon their
face that the entries in Exhibits D and E were not made in the
ordinary course of business, and even if they were, they would
not be evidence of the payments without the corresponding
receipts or vouchers. That is to say, to entitle the administrator to
credit for money paid out in the course of administration, he
should submit and file with the court a corresponding receipt or
voucher. Even so, it appears from the record that during his
lifetime, the deceased employed a number of laborers on the
plantation, and that after Wilson was appointed as administrator,
Fleming personally took charge of and operated the plantation,
and that the expenses of which for the first eight months was

P2,257.45.
The order of the lower court approving the final account of Wilson
as administrator is reversed and set aside, and a judgment will be
entered in favor of the heirs and against the administrator for
P3,839.22, with interest thereon from November 7,1927, at the
rate of 6 per cent per annum, without prejudice to any remedy
which the heirs may have against the bondsmen of the
administrator. The appellants to recover costs. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Romualdez
and Villa-Real, JJ., concur. Ostrand, J., reserves his vote.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-40517 January 31, 1984
LUZON SURETY COMPANY, INC., plaintiff-appellee,
vs.
PASTOR T. QUEBRAR and FRANCISCO KILAYKO,
defendants-appellants.
Tolentino & Garcia & D. R. Cruz for plaintiff-appellee.
Zoilo V. dela Cruz, Jr. for defendants-appellants.
MAKASIAR, J.:
This is an appeal from the judgement of the Court of First
Instance of Manila in Civil Case No. 52790 dated November 3,
1964 which was certified to this Court by the Court of Appeals in
its resolution dated March 20, 1975.
On August 9, 1954, plaintiff-appellee issued two administrator's
bond in the amount of P15,000.00 each, in behalf of the
defendant-appellant Pastor T. Quebrar, as administrator in
Special Proceedings Nos. 3075 and 3076 of the Court of First
Instance of Negros Occidental, entitled " Re Testate Estate of A.
B. Chinsuy," and Re Testate Estate of Cresenciana Lipa,"
respectively, (pp. 8-12, 17-21, ROA; p. 9 rec.). In consideration of
the suretyship wherein the plaintiff-appellee Luzon Surety
Company, Inc. was bound jointly and severally with the defendant
appellant Pastor T. Quebrar, the latter, together with Francisco
Kilayko, executed two indemnity agreements, where among other
things, they agreed jointly and severally to pay the plaintiffappellee "the sum of Three Hundred Pesos (P300.00) in advance
as premium thereof for every 12 months or fraction thereof, this ...
or any renewal or substitution thereof is in effect" and to indemnify
P 750.94
693.20
322.90
2,257.45
1,655.54
5,680.03
plaintiff-appellee against any and all damages, losses, costs,
stamps taxes, penalties, charges and expenses, whatsoever,
including the 15% of the amount involved in any litigation, for
attomey's fees (pp. 12-16, 21-25. ROA; p. 9, rec.).
For the first year, from August 9, 1954 to August 9, 1955, the
defendants-appellants paid P304.50 under each indemnity
agreement or a total of P609.00 for premiums and documentary
stamps.
On June 6, 1957, the Court of First Instance of Negros Occidental
approved the amended Project of Partition and Accounts of
defendant-appellant (p. 87, ROA; p. 9, rec.).
On May 8, 1962, the plaintiff-appellee demanded from the
defendants-appellants the payment of the premiums and
documentary stamps from August 9,1955.
On October 17, 1962, the defendants-appellants ordered a motion
for cancellation and/or reduction of executor's bonds on the
ground that "the heirs of these testate estates have already
received their respective shares" (pp. 69-70, ROA, p. 9, rec.).

47
On October 20, 1962, the Court of First Instance of Negros
Occidental acting on the motions filed by the defendantsappellants ordered the bonds cancelled.
Plaintiff-appellee's demand amounted to P2,436.00 in each case,
hence, a total of P4,872.00 for the period of August 9, 1955 to
October 20, 1962. The defendants-appellants to pay the said
amount of P4,872.00.
On January 8, 1963, the plaintiff-appellee filed the case with the
Court of First Instance of Manila During the pre-trial the parties
presented their documentary evidences and agreed on the
ultimate issue - "whether or not the administrator's bonds were in
force and effect from and after the year that they were filed and
approved by the court up to 1962, when they were cancelled."
The defendants-appellants offered P1,800.00 by way of amicable
settlement which the plaintiff-appellee refused.
The lower court allowed the plaintiff to recover from the
defendants-appellants, holding that:
We find for the plaintiff it is clear from the terms of the Order of
the Court in which these bond were filed, that the same were in
force and effect from and after filling thereof up to and including
20 October, 1962, when the same werecancelled. It follows that
the defendants are liable under the terms of the Indemnity
Agreements, notwithstanding that they have not expressly sought
the renewal of these bonds bemuse the same were in force and
effect until they were cancelled by order of the Court. The renewal
of said bonds is presumed from the fact that the defendants did
not ask for the cancellation of the same; and their liability springs
from the fact that defendant Administrator Pastor Quebrar,
benefited from the bonds during their lifetime.
We find no merit in defendants' claim that the Administrator's
bonds in question are not judicial bonds but legal or conventional
bonds only, since they were constituted by virtue of Rule 82, Sec.
1 of the Old Rule of Court. Neither is there merit in defendants,
claim that payments of premiums and documentary stamps were
conditions precedent to the effectivity of the bonds, since it was
the defendants' duty to pay for the premiums as long as the
bonds were in force and effect. Finally, defendants' claim that
they are not liable under the Indemnity Agreements is also without
merit since the under of defendants under said Indemnity
Agreements; includes the payment of yearly pre for the bonds.
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants, ordering the tsn the
defendant to pay the plaintiff, jointly and severally, the amount of
P6,649.36 plus interest at the legal rate from 27 July 1964 until
fully paid and the sum equivalent to 10% of the total amount due
as and or attorney's fees, and costs (pp. 92-94, ROA; p. 9, rec.).
Defendants-appellants appealed to the Court of Appeals. On
March 20, 1975, the Court of Appeals in a resolution certified the
herein case to this Court after finding that this case involves only
errors or questions of law.
1. The proper determination of the liability of the surety and of the
principal on the bond must depend primarily upon the language of
the bond itself. The bonds herein were required by Section 1 of
Rule 81 of the Rules of Court. While a bond is nonetheless a
contract because it is required by statute (Midland Co. vs. Broat
52 NW 972), said statutory bonds are construed in the light of the
statute creating the obligation secured and the purposes for which
the bond is required, as expressed in the statute (Michael vs.
Logan, 52 NW 972; Squires vs. Miller, 138 NW 1062). The statute
which requires the giving of a bond becomes a part of the bond
and imparts into the bond any conditions prescribed by the statute
(Scott vs. United States Fidelity Co., 252 Ala 373, 41 So 2d 298;
Employer's Liability Assurance Corp. vs. Lunt, 82 Ariz 320, 313
P2d 393).
The bonds in question herein contain practically the very same
conditions in Sec. 1, Rule 81 of the Rules of Court. Pertinent
provision of the administrator's bonds is as follows:
Therefore, if the said Pastor T. Quebrar faithfully prepares and
presents to the Court, within three months from the date of his
appointment, a correct inventory of all the property of the

deceased which may have come into his possession or into the
possession of any other person representing him according to
law, if he administers all the property of the deceased which at
any time comes into his possession or into the possession of any
other person representing him; faithfully pays all the debts,
legacies, and bequests which encumber said estate, pays
whatever dividends which the Court may decide should be paid,
and renders a just and true account of his administrations to the
Court within a year or at any other date that he may be required
so to do, and faithfully executes all orders and decrees of said
Court, then in this case this obligation shall be void, otherwise it
shall remain full force and effect (p. 9, 18, ROA p. 9, rec.).
Section 1 of Rule 81 of the Rules of Court requires the
administrator/executor to put up a bond for the purpose of
indemnifying the creditors, heirs, legatees and the estate. It is
conditioned upon the faithful performance of the administrator's
trust (Mendoza vs. Pacheco, 64 Phil. 134).
Having in mind the purpose and intent of the law, the surety is
then liable under the administrator's bond, for as long as the
administrator has duties to do as such administrator/executor.
Since the liability of the sureties is co-extensive with that of the
administrator and embraces the performance of every duty he is
called upon to perform in the course of administration (Deobold
vs. Oppermann, 111 NY 531, 19 NE 94), it follows that the
administrator is still duty bound to respect the indemnity
agreements entered into by him in consideration of the suretyship
It is shown that the defendant-appellant Pastor T. Quebrar, still
had something to do as an administrator/executor even after the
approval of the amended project of partition and accounts on
June 6, 1957.
The contention of the defendants-appellants that the
administrator's bond ceased to be of legal force and effect with
the approval of the project of partition and statement of accounts
on June 6, 1957 is without merit. The defendant-appellant Pastor
T. Quebrar did not cease as administrator after June 6, 1957, for
administration is for the purpose of liquidation of the estate and
distribution of the residue among the heirs and legatees. And
liquidation means the determination of all the assets of the estate
and payment of all the debts and expenses (Flores vs. Flores, 48
Phil. 982). It appears that there were still debts and expenses to
be paid after June 6, 1957.
And in the case of Montemayor vs. Gutierrez (114 Phil. 95), an
estate may be partitioned even before the termination of the
administration proceedings. Hence, the approval of the project of
partition did not necessarily terminate the administration
proceedings. Notwithstanding the approval of the partition, the
Court of First Instance of Negros Occidental still had jurisdiction
over the administration proceedings of the estate of A.B. Chinsuy
and Cresenciana Lipa.
2. The sureties of an administration bond are liable only as a rule,
for matters occurring during the term covered by the bond. And
the term of a bond does not usually expire until the administration
has been closed and terminated in the manner directed by law
(Hartford Accident and Indemnity Co. vs. White, 115 SW 2d 249).
Thus, as long as the probate court retains jurisdiction of the
estate, the bond contemplates a continuing liability (Deobold vs.
Oppermann, supra) notwithstanding the non-renewal of the bond
by the defendants-appellants.
It must be remembered that the probate court possesses an allembracing power over the administrator's bond and over the
administration proceedings and it cannot be devoid of legal
authority to execute and make that bond answerable for the every
purpose for which it was filed (Mendoza vs. Pacheco, 64 Phil. 105). It is the duty of the courts of probate jurisdiction to guard
jealously the estate of the deceased persons by intervening in the
administration thereof in order to remedy or repair any injury that
may be done thereto (Dariano vs. Fernandez Fidalgo, 14 Phil. 62,
67; Sison vs. Azarraga, 30 Phil. 129, 134).
3. In cases like these where the pivotal point is the interpretation
of the contracts entered into, it is essential to scrutinize the very

48
language used in the contracts. The two Indemnity Agreements
provided that:
The undersigned, Pastor T. Quebrar and Dr. Francisco Kilayko,
jointly and severally, bind ourselves unto the Luzon Surety Co.,
Inc. ... in consideration of it having become SURETY upon Civil
Bond in the sum of Fifteen Thousand Pesos (P15,000.00) ... in
favor of the Republic of the Philippines in Special Proceeding ...
dated August 9, 1954, a copy of which is hereto attached and
made an integral part hereof (emphasis supplied; pp. 12-13, 21,
ROA p. 9, rec.),
To separately consider these two agreements would then be
contrary to the intent of the parties in making them integrated as a
whole.
The contention then of the defendants-appellants that both the
Administrator's Bonds and the Indemnity Agreements ceased to
have any force and effect, the former since June 6, 1957 with the
approval of the project of partition and the latter since August 9,
1955 with the non-payment of the stated premiums, is without
merit. Such construction of the said contracts entered into would
render futile the purpose for which they were made.
To allow the defendants-appellants to evade their liability under
the Indemnity Agreements by non-payment of the premiums
would ultimately lead to giving the administrator the power to
diminish or reduce and altogether nullify his liability under the
Administrator's Bonds. As already stated, this is contrary to the
intent and purpose of the law in providing for the administrator's
bonds for the protection of the creditors, heirs, legatees, and the
estate.
4. Moreover, the lower court was correct in holding that there is
no merit in the defendants' claim that payments of premiums and
documentary stamps are conditions precedent to the effectivity of
the bonds.
It is worthy to note that there is no provision or condition in the
bond to the effect that it will terminate at the end of the first year if
the premium for continuation thereafter is not paid. And there is
no clause by which its obligation is avoided or even suspended by
the failure of the obligee to pay an annual premium (U.S. vs.
Maryland Casualty Co. DCMD 129 F. Supp; Dale vs. Continental
Insurance Co., 31 SW 266; Equitable Insurance C. vs. Harvey, 40
SW 1092).
It was held in the case of Fourth and First Bank and Trust Co. vs.
Fidelity and Deposit Co. (281 SW 785), that "at the end of the first
year, the bond went on, whether or not the premium was paid or
not ... Even on a failure to pay an annual premium, the contract
ran on until affirmative action was taken to avoid it. The obligation
of the bond was therefore continuous." And in United States vs.
American Surety Co. of New York (172 F2d 135), it was held that
"under a surety bond securing faithful performance of duties by
postal employee, liability for default of employee occurring in any
one year would continue, whether or not a renewal premium was
paid for a later year."
The payment of the annual premium is to be enforced as part of
the consideration, and not as a condition Woodfin vs. Asheville
Mutual Insurance Co., 51 N.C. 558); for the payment was not
made a condition to the attaching or continuing of the contract
(National Bank vs. National Surety Co., 144 A 576). The premium
is the consideration for furnishing the bonds and the obligation to
pay the same subsists for as long as the liability of the surety shall
exist (Reparations Commission vs. Universal Deep-Sea Fishing
Corp., L-21996, 83 SCRA 764, June 27, 1978). And in Arranz vs.
Manila Fidelity and Surety Co., Inc. (101 Phil. 272), the "premium
is the consideration for furnishing the bond or the guaranty. While
the liability of the surety subsists the premium is collectible from
the principal. Lastly, in Manila Surety and Fidelity Co., Inc. vs.
Villarama (107 Phil. 891), it was held that "the one-year period
mentioned therein refers not to the duration or lifetime of the
bond, but merely to the payment of premiums, and, consequently,
does not affect at all the effectivity or efficacy of such bond. But
such non- payment alone of the premiums for the succeeding
years ... does not necessarily extinguish or terminate the

effectivity of the counter-bond in the absence of an express

stipulation in the contract making such non-payment of premiums
a cause for the extinguishment or termination of the undertaking.
...There is no necessity for an extension or renewal of the
agreement because by specific provision thereof, the duration of
the counter-bond was made dependent upon the existence of the
original bond."
5. It is true that in construing the liability of sureties, the principle
of strictissimi juris applies (Asiatic Petroleum Co. vs, De Pio, 46
Phil. 167; Standard Oil Co. of N.Y. vs. Cho Siong, 53 Phil. 205);
but with the advent of corporate surety, suretyship became
regarded as insurance where, usually, provisions are interpreted
most favorably to the insured and against the insurer because
ordinarily the bond is prepared by the insurer who then has the
opportunity to state plainly the term of its obligation (Surety Co.
vs. Pauly, 170 US 133, 18 S. Ct. 552.,42 L. Ed. 972).
This rule of construction is not applicable in the herein case
because there is no ambiguity in the language of the bond and
more so when the bond is read in connection with the statutory
provision referred to.
With the payment of the premium for the first year, the surety
already assumed the risk involved, that is, in case defendantappellant Pastor T. Quebrar defaults in his administrative duties.
The surety became liable under the bond for the faithful
administration of the estate by the administrator/executor. Hence,
for as long as defendant-appellant Pastor T. Quebrar was
administrator of the estates, the bond was held liable and
inevitably, the plaintiff-appellee's liability subsists since the liability
of the sureties is co-extensive with that of the administrator.
WHEREFORE, THE DECISION OF THE COURT OF FIRST
INSTANCE OF MANILA DATED NOVEMBER 3, 1964 IS
HEREBY AFFIRMED. WITH COSTS AGAINST DEFENDANTSAPPELLANTS.
Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin,
JJ., concur.
Aquino, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 43351
February 26, 1937
Intestate estate of the deceased Baldomero Cosme.
ROSARIO COSME DE MENDOZA, administratrix-appellee,
vs.
JANUARIO PACHECO and RAYMUNDO CORDERO, suretiesappellants.
Vicente J. Francsico and Estanislao A. Fernandez, Jr. for
appellants. R. Gonzales Lloret for appellee.
LAUREL, J.:
The facts in this case are not disputed. Manuel Soriano was
former administrator of the estate of Baldomero Cosme in civil
case No. 5494, Court of First Instance of Laguna. To assure
faithful performance of his duties as such administrator, he filed a
bond for P5,000, with the herein appellants, Januario Pacheco
and Raymundo Cordero, as sureties. Soriano's account, upon
approval, showed him indebted to the estate in the sum of
P23,603.21. Unable to turn this amount over to the estate upon
demand of Rosario Cosme, the new administratrix, the lower
court ordered the execution of his bond on November 4, 1932,
after notice duly served upon the sureties. Sometime later, the
court approved a settlement had between the adminstratrix and
the ex-administrator, whereby the latter ceded certain real
properties to the estate reducing on that account his indebtedness
to the estate from P23,603.21 to P5,000. As to this last amount,
"La administradora se atiene a la orden de ejecucion de la fianza
suscrita por los fiadores Januario Pacheco y Raymundo Cordero"
(Record on Appeal, p. 2). Subsequently, the administratrix had
the public sale thereof to collect this amount of P5,000. Separate

49
motions to he discharged from the bond were filed by sureties
Pacheco and Cordero. Both motions were denied. A motion by
Cordero to reconsider the order of denial met a like fate. Brought
on appeal to this court, the appeal was dismissed. The dispositive
part of the decision of this court (G. R. No. 40998, Cosme de
Mendoza vs. Pacheco and Cordero [60 Phil., 1057]) reads as
follows:
The motion of October 1, 1933, was filed only on behalf of
Raymundo Cordero who filed no motion for reconsideration of the
order of execution of November 4, 1932, and took no appeal
therefrom. Being of the opinion that the trial court correctly held
that said order had become final, the motion of October 31, 1933,
for reconsideration (if such it may be called) came too late. The
judgment is therefore affirmed with costs against the appellants.
When the case was remanded to the lower court, the sureties
filed a motion challenging, for the first time, the jurisdiction of the
trial court to issue the order of November 4, 1932, executing the
bond. The trial court denied the motion in view of the decision of
this court. The case is elevated here for the second time on
appeal.
Appellants assign the following error:
The lower court erred in refusing: (a) To declare null and void its
order of execution of the ex-administrator's bond of November 4,
1932, as well as the writs of execution issued in virtue thereof; (b)
to accordingly vacate said order of November 4, 1932, and order
the release of the properties of the herein sureties-appellants
attached in pursuance of the writs of execution issued against
them by virtue of said order; and (c) to order the suspension of
the execution of the said order of November 4, 1932, until this
case is finally decide.
In the discussion of the foregoing assignment of error in their brief
(pp. 9-23), the appellants take in six propositions. One question,
however, that of jurisdiction of the Court of First Instance of
Laguna to order the execution of the administrator's bond is
decisive of this appeal. Appellants, sureties upon the bond, press
the point that the order in suit is an absolute nullity for lack of
power in the issuing court. "In vain," they tell us, "have we
searched our statute books, especially the part of our Code of
Civil Procedure regarding probate jurisdiction, to find whether our
Courts of First Instance, acting as probate courts, have the power
to order the execution of an administrator's bond." Neither their
failure to assail that jurisdiction when they ought nor the
subsequent affirmance of the order by this court, they say, could
revive an order dead from its inception.
To begin with, it lies within discretion of the court to select an
administrator of the estate of a deceased person (Capistrano vs.
Nadurata, 46 Phil., 726, 727). Before an administrator, or an
executor, enters upon the execution of his trust, and letters
testamentary or of administration are issued, the person to whom
they are issued is required to give a bond in such reasonable sum
as the court directs, with one or more sufficient sureties,
conditioned upon the faithful performance of his trust (Code of
Civil Procedure, sec. 643, 662). The administrator is accountable
on his bond along with the sureties for the performance of certain
legal obligations. (Tan vs. Go Chiong Lee, 46 Phil., 200, 205. See
also, Stovall vs. Banks, 10 Wall., 583, 588; 19 Law. ed., 1036;
Long vs. O'Fallon, 19 How., 116; 15 Law. ed., 550.)
It is clear that a Court of First Instance, exercising probate
jurisdiction, is empowered to require the filing of the
administrator's bond, to fix the amount thereof, and to hold it
accountable for any breach of the administrator's duty.
Possessed, as it is, with an all-embracing power over the
administrator's bond and over administration proceedings, a Court
of First Instance in a probate proceeding cannot be devoid of
legal authority to execute and make that bond answerable for the
very purpose for which it was filed. It is true that the law does not
say expressly or in so many words that such court has power to
execute the bond of an administrator, but by necessary and
logical implication, the power is there as eloquently as if it were
phrased in unequivocal term. When the accountability of an

administrator's bond is spoken of in the very provisions dealing

with and bearing directly on administration proceedings, it would
involve a strained construction to hold, as appellants would have
us do, that where an administrator is held liable for a devastravit
for having squandered and misapplied property which he was in
duty bound to marshal and conserve, the estate is without a
remedy to go against the administrator's bond in the same
probate proceedings, but in an action outside of and separate
from it. In this connection, it should be observed that section 683
of the Code of Civil Procedure provides that "Upon the settlement
of the account of an executor or administrator, trustee, or
guardians, a person liable as surety in respect to such amount
may, upon application, be admitted as a party to such accounting,
and may have the right to appeal as hereinafter provided." There
is here afforded to a person who may be held liable as surety in
respect to an administrator's account the right, upon application,
to be admitted as a party to their accounting, from which we may
not unreasonably infer that a surety, like the appellants in the
case before us, may be charged with liability upon the bond
during the process of accounting, that is, within the recognized
confines of probate proceedings, and not in an action apart and
distinct from such proceedings.
Appellants in their brief direct our attention to several cases
decided by this court holding that Courts of First Instance, as
probate courts, have no power to adjudicate on claims of other
persons on property forming part of the estate, by title adverse to
the deceased (Guzman vs. Anog and Anog, 37 Phil., 61, 62); on
the legal usufruct of the widow (Sahagun vs. De Gorosita, 7 Phil.,
347, 351), and on the validity of testamentary dispositions
(Castaeda vs. Alemany, 3 Phil., 426, 428). We have carefully
examined these cases in relation to the facts and circumstances
of the case at bar. We take the view, however, that the execution
of an administrator's bond, unlike the questions involved in the
cited cases, clearly stands upon a different footing, and is as
necessary a part and incident of the administration proceeding as
the filing of such bond or the fixing of its amount. Particularly is
this true in the present case where Soriano's indebtedness to the
sate in the amount of P23,603.21, subsequently reduced to
P5,000, is conceded on all sides, and all that the trial court had to
do was to see that said amount was turned over to the estate.
It is the duty of courts of probate jurisdiction to guard jealously the
estates of the deceased person by intervening in the
administration thereof in order to remedy or repair any injury that
may be done thereto (Dariano vs. Fernandez Fidalgo, 14 Phil.,
62, 67; Sison vs. Azarraga, 30 Phil., 129, 134). "Probate and like
courts have a special jurisdiction only, and their powers as to
ancillary or incidental questions must of necessity to exercise
within certain limitations; but such powers include the right to try
questions which arise incidentally in a cause over which such
courts have jurisdiction and the determination of which are
necessary to a lawful exercise of the powers expressly conferred
in arriving at a decision. . . . There seems, however, to be a
general tendency, in the absence of express and specific
restrictions to the contrary, to uphold the exercise by these court
of such incidental powers as are, within the purview of their grant
of authority, reasonably necessary to enable them to accomplish
the objects for which they were invested with jurisdiction and to
perfect the same. And it has been held that statutes conferring
jurisdiction on such courts, being remedial and for the
advancement of justice, should receive a favorable construction,
such as will give them the force and efficiency intended by the
legislature." (15 C. J., 813, 814.) The tendency in the United
States indeed has been towards the enlargement of the powers of
probate courts. In the beginning these courts were possessed but
limited powers. Having originated from the ecclesiastical courts of
England, their jurisdiction, following their English patterns was
practically limited to the probate of wills, the granting of
administrators, and the suing for legacies (Plant vs. Harrion, 74 N.
Y. Sup., 411, 441; 36 Misc. Rep., 649; Chadwick vs. Chadwick,
13 Pac., 385, 388; 6 Mont., 566; 3 Bl. Comm., pp. 95-98). But,

50
though they still are often unadvisedly described, particularly in
Connecticut (Griffin vs. Pratt, 3 Conn., 513), as courts of limited,
inferior or special jurisdiction, they have outgrown their limitations
and have become courts with considerably increased powers
(Woerner, The American Law of Administration [2d], sec. 145;
Plant vs. Harrison, supra).
What has been said sufficiently determinative of the appeal before
us. We wish, however, to say a word on a salutary consideration
of policy which has been invariably followed by this court in cases
of this nature. We refer to the dispatch and economy with which
administration of the estates of deceased persons should be
terminated and settled. It will be recalled that the appellants could
have raised the question of jurisdiction now pressed upon us in
civil case No. 5494 of the Court of First Instance of Laguna and
on appeal of that case to this court once before (G. R. No. 40998
[60 Phil., 1057]). They not failed to avail of that right but failed to
appeal from the order complained of (Vide, Decision of this court
in G. R. No. 40998, Cosme de Mendoza vs. Pacheco and
Cordero). The questions raised in the appeal at bar, appellant's
second attempt to go about and frustrate the order in question,
could have been passed upon once for all in the case referred to.
We cannot encourage a practice that trenches violently upon the
settled jurisprudence of this court that the policy and purpose of
administration proceedings is ". . . to close up, and not to continue
an estate . . ." (Lizarraga Hermanos vs. Abada, 40 Phil., 124,
133), and that ". . . the State fails wretchedly in its duty to its
citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome,
unwidely and expensive that a considerable portion of the sate is
absorbed in the process of such division. Where administration is
necessary, it ought to be accomplished consumes any
considerable portion of the property which it was designed to
distribute is a failure. . . ." (McMicking vs. Sy Conbieng, 21 Phil.,
211, 220.)
The order appealed from is hereby affirmed, with costs against
the appellants. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion,
JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
Much as I respect the opinion of the majority, I am constrained by
contrary conviction to dissent from said opinion.
Chapter XXXI of the Code of Civil Procedure, which is headed
"Wills and the allowance thereof, and duties of executors",
contains no provision concerning the enforcement of the liability of
an executor or administrator on his bond and of that of his
sureties. According to article 1853 of the Civil Code, "the
guarantor may set up against the creditor all the defenses
available to the principal debtor and which may be inherent in the
debt; . . . ." In an administration bond the executor or
administrator stands in the place of the principal debtor; his
sureties may, therefore, set up all the defenses to which he may
be entitled, and which are inherent in the obligation. The
procedure by which such defenses may be set up is the ordinary
one established by the said Code of Civil Procedure by means of
an action in court wherein may contain general or special denial,
a special defense or a counterclaim. (Secs. 94 and 95, Act No.
190.) The said Code has not established any special procedure
by which an executor or administrator with a mere notice to his
sureties does not afford them an adequate opportunity to set up
the defenses which the law guarantees to them. To enforce the
liability of an administrators and require them to file an adequate
bond is not only ultra vires but a violation of the constitutional
inhibition that no person shall be deprived of his life, liberty and
property without due process of law. "The usual method of
enforcing the liability on an administration bond is by an action
brought on the bond in a court of law, although in some
jurisdictions other forms of remedy are provided by statute, . . . ."
(24 Corpus Juris, sec. 2598, p. 1084.)

The only procedure by which the liability of an executor or

administrator and his sureties be enforced on their bond is,
therefore, by an ordinary action in court.
The failure of the sureties to appeal from the order of summary
execution issued by the court below on their bond after a mere
service of notice did not legalize said summary procedure and the
order of summary execution issued by the lower court, which
were otherwise illegal and ultra vires.
The order appealed from ordering the summary execution of the
bond filed by the sureties-appellants, together with the former
administrator Ramon Soriano, was issued not only in excess of
jurisdiction but without it, because it was not authorized by law.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-30431
March 30, 1929
Intestacy of Angel Gustilo, deceased. AGRIPINO S.
GUSTILLO, administrator-appellee,
vs.
PERPETUA SIAN, creditor-appellant.
Mariano Ezpeleta for appellant. Rosauro R. Borromeo for
appellee.
STREET, J.:
This is an appeal from an order of the Court of First Instance of
Iloilo, in the intestacy of Angel Gustillo, deceased, whereby Judge
Santamaria denied relief to the appellant, Perpetua Sian, from a
previous order made in the intestacy on April 7, 1928, by Judge
Fernando Salas.
It appears that on July 7, 1923, Agripino S. Gustilo was appointed
administrator of the estate of his deceased father, Angel Gustilo;
and on July 30, 1925, the administrator filed his accounts for the
years 1923 to 1925, inclusive. On October 15, 1926, the widow of
the intestate, in conjunction with other heirs, presented a motion
asking for the removal of the administrator, charging him with
being negligent, to appear in his accounts exorbitant and illegal
expenses, ruinous to the state under administration. On July 16,
1927, the administrator presented a motion asking that he be
granted a salary of P3,000 annually. On the same day the
administrator presented separate accounts for the years 19251926 and 1926-1927. In the first of these accounts there
appeared a deficit of P462.25; while in the second there appeared
a deficit of P3,222.91. To these accounts opposition was made by
Leocadia Majito, one of the creditors, the opposition being
especially directed to the annual salary of P3,000 which the
administrator credited to himself and the sum of P1,000 paid by
him to his attorney. This opposition on the part of Leocadia Majito
was reiterate nine days later in a writing in which exception was
taken to the distribution of surplus in the amount of P11,304.50.
Still later, on August 5, 1927, Leocadia Majito, in a more detailed
writing of opposition, pointed out that certain alleged debts had
been charged twice to the estate and that no adequate vouchers
were exhibited to justify the charges.
On August 23, 1927, Judge Santamaria, before whom, as Judge
of the First Instance of the Court of Iloilo, the intestacy had
hitherto been heard, disapproved the accounts of the
administrator and ordered him to file amended accounts within
thirty days. On September 30, 1927, the administrator asked for
an extension of time within which to file the required amended
accounts were ever filed. On February 28, 1928, the administrator
presented for a second time the old accounts without change. On
March 26, 1928, Judge Fernando Salas (in the absence of
Santamaria) ordered the administrator to present amended
accounts within ten days; but, in disregard of this order, Judge
Salas, on April 7, 1928, reconsidered the order Judge Santamaria
of August 23, 1927, and at the same time approved the same two
accounts. On his order the opposing creditors do not appear to
have received due notices. On June 26, 1928, the attorney for the

51
appellant filed a motion asking for the reconsideration of the order
of April 7, 1928, alleging fraud, mistake and surprise. In the same
motion application was made for the removal of the administrator
and for forfeiture of his bond. This application we consider to have
been made under section 113 of the Code of Civil Procedure; and
it is from an order of Judge Santamaria, expressed with some
regret, denying the application to set aside the order of Judge
Salas of April 7, 1928, that this appeal is being prosecuted.
There can be no doubt that an appeal lies from a refusal of a
court to grant relief in a proper case under section 113 of the
Code of Civil Procedure; and it is evident that Judge Santamaria,
possibly out of an excessive defense for the prior order of an
associate, has failed to give relief where relief was in fact called
for. The order of Judge Salas, which is the subject of complaint in
this appeal, was in our opinion improvident, to say the least, and
made without a reasonable opportunity having been given to the
adverse creditors to make effective opposition.
From what has been said it follows that the order from which this
appeal was taken is erroneous, and, as prayed in the first
assignment of error, we hereby set aside the order of Judge
Fernando Salas of April 7, 1928, with the result of the
proceedings will be restored to the position in which they stood
before that order was entered, except as stated in the next
paragraph.
A careful examination of the facts revealed in this record
concerning the activities of Agripino S. Gustilo, as administrator of
Angel Gustilo, convinces this court that he is not a fit person to be
administrator of this estate and that he has not in fact
administered it so far with due regard to the rights of other
persons in interest. It is the opinion of the court, therefore, that he
should be removed and required to render his accounts as
administrator, in accordance with the second assignment of error.
The third assignment of error, taking exception to the refusal of
the trial court to order the forfeiture of the bond of the
administrator, in our opinion contemplates an order that would be
premature.
The fourth assignment of error involves a criticism of the court a
quo for not seeing that the debts of the estate had been more
expeditiously paid; and it supplies no basis for resolution here.
In conclusion, the order of April 7, 1928, above referred to, is
abrogated, the administrator, Agripino S. Gustilo, is removed from
office, with liability to account, and the cause remanded for further
proceedings. So ordered, without costs.
Johnson, Malcolm, Ostrand, Johns, Romualdez and Villa-Real,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1320
July 30, 1947
SANTIAGO DEGALA, petitioner,
vs.
PATRICIO C. CENIZA, Judge of First Instance of Ilocos Sur,
and VALENTIN UMIPIG, as special administrator of the estate
of Placida Mina, respondents.
Antonio Directo for petitioner. J.Q. Quintillan for respondents.
PARAS, J.:
The respondent Valentin Umipig was appointed special
administrator of the estate of the deceased Placida Mina in civil
case No. 3689 of the Court of First Instance of Ilocos Sur. In
original action for certiorari, the petitioner Santiago Degala
complains of, and seeks relief from, the failure or refusal of the
respondent Judge, Honorable Patricio C. Ceniza, to remove said
special administrator. The grounds upon which the petitioner
based his various motions for removal in the Court of First
Instance, may be summed up as follows: (1) That Valentin Umipig
has an interest adverse to the estate under administration. (2)

That he is a stranger to the estate, not being in any way a

beneficiary under the alleged will of Placida Mina. (3) That he has
failed to include in his inventory some properties belonging to the
estate. (4) That he has failed to pay certain taxes due from the
estate. (5) That he has failed to render an accounting in spite of
orders of the court.
The petitioner invokes section 2 of Rule of Court No. 83, which
provides that "if an executor or administrator neglects to render
his account and settle the estate according to law, or to perform
an order or judgment of the court, or a duty expressly provided by
these rules, or absconds, or becomes insane, or otherwise
incapable or unsuitable to discharge the trust, the court may
remove him, or, in its discretion, may permit him to resign."
Under the very rule invoked by the petitioner, the removal of an
administrator lies within the discretion of the court appointing him.
The sufficiency of any ground for removal should thus be
determined by said court, whose sensibilities are, in first place,
affected by any act or omission on the part of the administrator
not conformable to or in disregard of the rules or the orders of the
court. We cannot merely substitute our way of thinking for that of
a lower court in matters under its discretionary power. And in the
case at bar, we cannot hold that the respondent Judge gravely
abused his discretion, particularly in view of the circumstance that
the alleged grounds for removal are not in fact weighty.
We cannot agree to petitioner's contention that simply because
Jesus Q. Quintillan, former administrator removed by the court on
the ground of adverse interest, is the attorney for the respondent
administrator, the latter is necessarily disqualified on the same
ground. Any interest which said attorney may have is exclusively
personal to him, in which the respondent Valentin Umipig can
have nothing to do.
With respect to the second ground relied upon the petitioner, he
admits that the respondent administrator, as a son of the
deceased Crisanto Umipig, can represent his father as a trustee
under section 3 of the will in question, although it is contended
that the provision of said will regarding the creation of trust, was
declared null and void in the order of the Court of First Instance of
Ilocos Sur of July 7, 1947. upon examining said order, however,
we find that petitioner's contention is not correct, since it recites
that "el Juzgado no resuelve por ahora con ocasion de esta
mocion de sobreseimiento, si las disposiciones testamentarias en
cuestion son nulas o validas."
Whether the respondent administrator failed to include in his
inventory some properties belonging to the estate, is question of
fact to be determined by the respondent Judge after the reception
of necessary evidence. Indeed, in the order of the Court of First
Instance of April 4, 1946, the clerk of said court was
commissioned to receive evidence which the oppositors, one of
whom is the petitioner, may have regarding the point.
It may be true that the respondent administrator failed to pay all
taxes due from the estate, but said failure may be due to lack of
funds, and not to a willful omission.
Regarding the alleged failure of the respondent administrator to
render an accounting, it appears that he did so on January 28,
1947. Whether the statement of accounts was filed on time and
whether the same is complete and correct, are matters addressed
to the judgment and discretion of the respondent Judge. It may
not be amiss to add that the latter will of course know when to
resort to the bond filed by the respondent administrator who, by
the way, is not alone in the trust, it appearing that Attorney
Antonio Directo, counsel for the petitioner, has been appointed
special co-administrator.
The petition is hereby dismissed, and it is so ordered with costs
against the petitioner.
Moran, C.J., Feria, Pablo, Hilado, Bengzon, Hontiveros, Padilla,
and Tuason, JJ., concur.
Separate Opinions
PERFECTO, J., concurring:
The granting of an extension of 10 days of the time within which

52
special administrator Valentin Umipig should file the accounts of
his administration appears to be so unreasonable to justify that,
as prayed by petitioner, it be disturbed. .
The facts alleged in the petition are not ground enough why the
lower court should be compelled to order the removal of said
special administrator. There is enough ground for the lower court
to issue his discretion to the effect of ordering said removal, but
its action in not ordering it does not appear to be arbitrary,
abusive, or even unwise. The fact that the lower court had to
issue warnings in order to compel said special administrator to
perform its official duties offers basis enough to believe that said
official duties and negligence in the performance of official duty
should not be countenanced, but rather should be dealt with
sternly. It justifies removal from office, it is highly detrimental to
public interest. The guilty ones should always be made to feel the
weight of their responsibility and suffer the deserved sanction.
In our opinion, the petition must be denied.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-35903
October 27, 1932
PRUDENCIA CHUA TAN, ET AL., plaintiffs-appellants,
vs.
LUCIA DEL ROSARIO, administratrix of the estate of the
deceased, Chua Toco, defendant-appellee.
Felipe A. Jose for appellants. Garcia and Tolentino for appellee.
VILLA-REAL, J.:
This is an appeal by the plaintiff, Prudencia Chua Tan and others,
from the judgment of the Court of First Instance of Manila finally
dismissing their complaint and absolving the defendant, Lucia del
Rosario, as administratrix of the intestate estate of China Toco,
with costs against said appellants.
In support of their appeal the appellants assign the following
alleged errors as committed by the trial court in its decision, to wit:
1. The lower court erred in sustaining the defendant- appellee's
defense of res judicata, on the ground that this case has already
been decided by the Supreme Court of the Philippine Islands on
May 14, 1927 in civil case G. R. No. 26258, No. 25797 of the
Court of First Instance of Manila, instituted by Benedicta Santa
Juana, as administratrix of the intestate estate of Chua Piaco
against Lucia del Rosario, also as administratrix of the intestate
estate of Chua Toco.
2. The lower court also erred in holding that the P20,000
belonged to Chua Toco exclusively, when the evidence shows,
beyond a reasonable doubt, that Chua Toco received part of this
sum of money from his adoptive father, Chua Piaco, the
predecessor-in-interest of the herein plaintiffs-appellants; and that
this sum of P20,000 deposited in a current account bearing
interest at twelve per cent per annum, with the firm Ty Camco
Sobrino, amounted to P77,118.90 on April 24, 1913 when the
liquidation was made; which sum is the exclusive property of
Chua Piaco and Chua Toco, father and son.
3. The lower court also erred in not finding that the sum of
P38,559.30 which is one-half of the P77,118.60 that Chua Toco
had used to purchase a piece of land on Antonio Rivera Street,
expropriated by the Manila Railroad Company, in civil case No.
12832 of the Court of First Instance of Manila, belongs to the
herein plaintiffs-appellants as surviving spouse and heirs of the
late Chua Piaco, and to the Intestate Estate of Chua Toco, as
adopted son of Chua Piaco.
4. The lower court likewise erred in finally dismissing the
complaint filed by the herein plaintiffs-appellants, and in
sentencing the latter to pay the costs of the trial.
5. The lower court erred in denying the motion for a new trial filed
in this case by the plaintiffs-appellants.
Before entering into the merits of the case, we must decide the

question of procedure raised by the plaintiffs in their first

assignment of error quoted above, namely, that the trial court
erred in holding that the question here raised has already been
finally decided in civil case No. 25797 of the Court of First
Instance of Manila, and is res judicata.
Section 306 of the Code of Civil procedure provides:
SEC. 306. Effect of judgment. The effect of a judgment or final
order in an action or special proceeding before a court or judge of
the Philippine Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to pronounce the
judgment or order, may be as follows:
xxx
xxx
xxx
2. In other cases the judgment so ordered is in respect to the
matter directly adjudged, conclusive between the parties and their
successors in interest by title subsequent to commencement of
the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity.
And section 307 of the same Code of procedure reads:
SEC. 307. What is deemed to have been adjudged in a former
judgment. That only is deemed to have been adjudged in a
former judgment which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein
or necessary thereto.
In Pealosa vs. Tuason (22 Phil., 303), this court, interpreting the
provisions quoted above, held:
1. "RES ADJUDICATA"; ESTOPPEL BY JUDGMENT. The two
main rules based on the doctrine of res judicata or estoppel by
judgment as known to Anglo-American jurisprudence are as
follows:
(a) That judgment rendered by a court of competent jurisdiction
on the merits is a bar to any future suit between the same parties
or their privies upon the same cause of action, so long as it
remains unreversed;
(b) A point which was actually and directly in issue in a former
suit, and there juridicially passed upon and determined by a
domestic court of competent jurisdiction, cannot be again drawn
in question in any future action between the same parties or their
privies, even when the causes of action in the two suits are wholly
different.
2. ID.; ID.; A DISTINCTION. The difference between the effect,
of a judgment as a bar or estoppel against the prosecution of a
second action upon the same claim or demand, and its effect as
an estoppel in another action between the same parties upon a
different claim or cause of action, is that in the former case the
judgment, if rendered upon the merits constitutes an absolute bar
to a subsequent action, and is finality as to the claim or demand in
controversy, concluding parties and those in privity with them, not
only as to every matter which was offered and received to sustain
or defeat the claim or demand, but as to any other admissible
matter which might have been offered for that purpose. While in
the latter case the judgment in the prior action operates as an
estoppel only as to those matters in issue or points controverted
upon the determination of which the finding or judgment was
rendered.
There is no question that in civil case No. 25797 of the Court of
First Instance of Manila, the question there raised was finally
decided by a final judgment of dismissal, affirmed by this court on
appeal. 1
The first question to decide is whether there is identity of parties
in that case and in this one.
In civil case No. 25797 the plaintiff was Benedicta Santa Juana,
as judicial administratrix of the intestate estate of Chua Piaco, and
the defendant was Lucia del Rosario, as administratrix of the
intestate estate of Chua Toco. In the present case the plaintiffs
are the presumptive heirs of the late Chua Piaco and the
defendant is Lucia del Rosario, as administratrix of the intestate
estate of Chua Toco.
It is the duty of the administrator of the testate or intestate estate
of a deceased to present an inventory of the real estate and all
goods, chattels, rights, and credits of the deceased which have

53
come into his possession or knowledge, in accordance with the
provisions of section 668 of the Code of Civil Procedure, and to
manage them according to section 643 of the same Code; and in
order that he may have in his power and under his custody all
such property, section 702 of the aforesaid Code authorizes him
to bring such actions for the purpose as he may deem necessary.
Section 642 in providing for the appointment of an administrator
where there is no will or the will does not name an executor,
seeks to protect not only the estate of the deceased but also the
rights of the creditors in order that they may be able to collect
their credits, and of the heirs and legatees in order that they may
receive the portion of the inheritance or legacy appertaining to
them after all the debts and expenses chargeable against the
deceased's estate have been paid. Under the provisions of the
law, therefore, the judicial administrator is the legal representative
not only of the testate or intestate estate, but also of the creditors,
and heirs and legatees, inasmuch as he represents their interest
in the estate of the deceased.
Benedicta Santa Juana, as administratrix of the intestate estate of
the late Chua Piaco, was the legal representative not only of said
estate but also of its creditors and heirs. In view of this relation of
agent and principal between her and the plaintiffs in the present
case, the decision rendered against Benedicta Santa Juana, as
such administratrix, in the former case is conclusive and binding
upon said plaintiffs in the present case, in accordance with
section 306 of the Code of Civil Procedure cited above. (Spaths
vs. Hanley, 85 Cal., 155; Schwarz vs. Bohle, 47 Cal. Ap., 445;
Cunningham vs. Ashley, 45 Cal., 485; Lloyd vs. Bell, 77 Fed.,
365.)
With reference to the parties plaintiffs, then, while there is no real
identity between the plaintiff in civil case No. 25797 of the Court of
First Instance of Manila, and the plaintiffs in the present case,
nevertheless, there exists between them the relation of legal
representation by virtue of which the decision rendered in such
case against the former binds the latter. With respect to the
parties defendant, there is no question that the defendant in the
first case is the same in the present and appears in the same
capacity.1awphil.net
The second question to decide is whether or not there is identity
of subject matter. In the former case the petition was for the
rendering of an accounting of certain funds alleged to have been
delivered in trust by the late Chua Piaco to his adopted son, the
late Chua Toco. In the present case the petition is for the partition
of those same funds and their fruits between the heirs of both
deceased. Therefore, the subject matter of the litigation is the
same, and, consequently, there is perfect identity of subject
matter.
As to whether or not there is identity of cause of action, in the
former case it was alleged that the late Chua Piaco had delivered
in trust to his adopted son, the late Chua Toco, certain funds and
that the judicial administratrix of the latter's intestate estate had
refused to render an accounting of said funds and the fruits
thereof. In the present case the plaintiffs include the same
allegation of trust, and the defendant makes the same denial,
except that instead of a rendition of accounts, the partition of said
funds and the product thereof is asked.
The cause of action in the former case is therefore identical with
the cause of action in the present case, and is predicated on one
and the same alleged right of action arising out of an alleged trust,
and the same general denial and special defense.
It is true that the relief sought, the rendition of accounts in the
former case, is different from the relief sought in the case now
before us, which is the partition of funds, but the question at
issue, upon the determination of which depended the granting or
denial of such relief, is the same, namely, whether Chua Piaco or
Chua Toco was the owner of said funds. This question was
definitely decided in favor of the defendant and against the
plaintiff, the complaint having been finally dismissed, wherein the
latter had alleged, as we have stated, that the aforesaid funds and
the products thereof belonged to the late Chua Piaco, who had

delivered the principal to his adopted son, Chua Toco, by way of

trust. Therefore, the relief sought in both cases necessarily
involves, as a main question, the ownership of the
aforementioned funds and its products.
Briefly: (1) While there is no identity between the plaintiff in the
former case and the plaintiffs in the present case, there is the
relation of representation between them; (2) there is identity of
cause of action; (3) there is identity of subject matter; and (4)
there is identity of issue, upon which depends the granting or
denial of the relief sought in each of said cases, and this issue
has been impliedly decided in the former case. Therefore, all the
elements of res judicata in accordance with the aforecited legal
provisions are present.
In view of foregoing considerations we are of the opinion and so
hold that a final judgment upon the merits rendered against the
judicial administratrix of an intestate estate, as such, in a case
where she is plaintiff and the administratrix of another intestate
estate, as such is the defendant, in which she seeks to secure an
accounting of funds alleged to have been delivered in trust by the
deceased, represented by the plaintiff administratrix, to the other
deceased, represented by the defendant administratrix,
constitutes res judicata in another case where the heirs of the
alleged donor are plaintiffs and the administratrix of the supposed
trustee is defendant, and in which the partition of the same funds
and the products thereof is sought between the heirs of both,
under the same allegation of trust, the alleged trustee being the
adopted child of the donor.
Having reached this conclusion, we deem it unnecessary to
discuss and decide the questions raised in the remaining
assignments of error.
Wherefore, finding no error in the judgment appealed from, it is
hereby affirmed in toto, with costs against the appellants. So
ordered.
Malcolm, Villamor, Ostrand, Abad Santos, Hull, Vickers, Imperial
and Butte, JJ., concur.

EN BANC
[G.R. No. 46898. January 20, 1940.]
Testate of the deceased Rudocindo Adapon. PEDRO
ADAPON, administrator-appellant, v. FELISA MARALIT,
Oppositor-Appellee.
G. Garcia and Jose Nava for Appellant.
Godofredo Reyes for Appellee.
SYLLABUS
1. ESTATES OF DECEASED PERSONS; EXTENT OF
JURISDICTION OF PROBATE COURTS; DETERMINATION OF
QUESTIONS OF OWNERSHIP. Under section 599 of the
Code of Civil Procedure, the probate jurisdiction of the Court of
First Instance relates only to matters having to do with "the
settlement of estates and probate of wills of deceased persons,
the appointment and removal of guardians and trustees, and the
power, duties, and rights of guardians and wards, trustees, and
cestuis que trust." As may be seen, the law does not extend the

54
jurisdiction of a probate court to the determination of questions of
ownership that arise during the proceeding.

"(d) En cuanto a la casa construida dentro del lote o finca No. 2

del inventario, la misma no debe ser incluida en el inventario,
puesto que es de la exclusiva propiedad del Administrador.

DECISION

"(e) En cuanto a la maquina descascarilladora de palay instalada

en la finca No. 2 del inventario, la misma no es de la
Testamentaria, sino de la propiedad exclusiva del Administrador
Pedro Adapon." (Record on Appeal, pp. 35-36.)

LAUREL, J.:

On December 16, 1936, Pedro Adapon presented for probate the

last will and testament of his deceased father, Rudocindo
Adapon, in the Court of First Instance of Batangas where the
cause was docketed as civil case No. 3313. The will was admitted
to probate, and Pedro Adapon, having been appointed
administrator by the court, filed an inventory of the properties and
assets of the estate. The surviving spouse of the testator by a
second marriage, Felisa Maralit, the oppositor-appellee here,
through counsel, presented a petition asking the court to order the
administrator to pay her a monthly allowance of P50, and to
include in the submitted inventory the following properties which,
it is alleged, had been omitted:
(a) Un credito hipotecario otorgado a favor
de Rudocindo Adapon por Gregorio Salud P2,000.00
(b) 1,000 cavanes de palay (ademas de 300)
cosechados y embodegados en la fecha
de la muerte del difunto y desde que este
fallecio hasta la fecha en que se
presento el inventario, a razon de P2 por
cada ca van 2,000.00
(c) 100 animales entre carabaos,

When the petition was set for hearing, the oppositor-appellee

moved that, in view of the claims of ownership made in the
answer, the administrator should be relieved of his duties and
another appointed to act in his place. The probate court
suspended the hearing for sometime in an effort to have the
parties reach an agreement, and failing in this, issued the order of
July 7, 1937, quoted below, which is the subject of the instant
appeal:jgc:chanrobles.com.ph
"El Juzgado, despues de haber considerado detenidamente la
pretension de una y otra parte, ha encontrado lo siguiente: 1.
que la viuda Felisa Maralit pide que el administrador sea
removido de su cargo, porque este alega ser dueo exclusivo de
algunos bienes que, segun la misma viuda, pertenecen a la
testamentaria; y 2. que el administrador no pretende tener
ningun derecho exclusivo sobre los bienes que el ha hecho
constar en el inventario.
"Sin resolver si el administrador es realmente dueo de los
bienes que el no quiere hacer constar en el inventario como
pertenecientes a la testamentaria, el Juzgado es de opinion que
el motivo alegado por la viuda en su mocion pidiendo que el
administrador sea removido de su cargo, no es suficiente para la
remocion de este; pero teniendo en cuenta que se debe discutir
en un juicio ordinario la propiedad de los bienes que los reclama
como suyos Pedro Adapon, y para ello habra necesidad de que
una persona en representacion de la testamentaria de Rudocindo
Adapon ejercite una accion contra Pedro Adapon, en interes de
esta actuacion especial, se debe nombrar como uno de los
administradores a Eusebio Ilagan para que en tal capacidad
reclame, en un juicio ordinario, de Pedro Adapon los bienes que,
segun la viuda, pertenecen a la testamentaria, de dicho finado.

caballos, y vacunos 1,400.00

(d) Una casa reconstruida levantada en
la finca No. 2 del inventario 6,000.00
(e) Una maquina descascarilladora de
palay nueva instalada en la finca

"Por todo lo expuesto, el Juzgado nombra a Eusebio Ilagan como

uno de los administradores de esta testamentaria con el unico fin
de ejercitar contra Pedro Adapon la accion respecto de los
bienes, que se encuentran en poder de este, segun la viuda,
dicho Pedro Adapon no quiere incluir en el inventario de los
bienes afectos a esta testarnentaria."cralaw virtua1aw library
In his detailed assignment of errors, the administrator-appellant
submits that the lower court erred in:jgc:chanrobles.com.ph

No. 2 del inventario 1,000.00

Total 12,400.00
To this petition, administrator-appellant filed an answer
enumerating his objections as follows:jgc:chanrobles.com.ph
"(a) En cuanto a la obligacion de Gregorio Salud, de P2,000, la
misma se ha contraido a favor del finado Rudocindo Adapon y del
Administrador Pedro Adapon; de modo que, solamente la mitad
de dicho credito, o sea, P1,000 corresponde a la Testamentaria.
"(b) En cuanto a los cavanes de palay, solamente 300 cavanes
corresponden a la Testamentaria.
"(c) En cuanto a los carabaos, caballos y vacunos, el
Administrador solo tiene en su poder unos 28 cabezas.

"1. Al estimar que la peticion de Felisa Maralit en la que se pide

que el administrador-apelante sea ordenado a incluir en el
inventario cierto credito y bienes enumerados en dicha peticion,
envuelve una cuestion de propiedad.
"2. Al denegar la peticion del administrador-apelante a que el
referido incidente suscitado por Felisa Maralit se vea y se
resuelva dentro de estas actuaciones de testa- mentaria.
"3. Al decretar, por orden fechada el 7 de julio de 1937, tal como
fue enmendada por la de 28 de julio, 1937, el nombramiento de
Alejandro Maralit como uno de los ad- ministradores de esta
testamentaria con el unico fin de ejercitar contra Adapon, la
accion respecto de los bienes que se encuentran en poder de
este, segun la viuda, dicho Pedro Adapon no quiere incluir en el
inventario de los bienes afectados a esta testamentaria.
"4. Al denegar la mocion de reconsideracion del administrador-

55
apelante a la orden del Juzgado de 7 de julio de 1937."cralaw
virtua1aw library
The statement of the issue by the parties is markedly conflictive.
We are of the opinion, however, that the sole question to be
resolved in this appeal is whether or not a Court of First Instance,
in the exercise of its probate jurisdiction under section 599 of the
Code of Civil Procedure, could, upon petition of an oppositor to
include certain properties in the inventory prepared by the
administrator, to some of which the said administrator has laid
claims of proprietorship, determine the question of ownership, and
thereby meet the issues as thus presented.
The administrator-appellant earnestly contends that the question
of ownership is not involved, and that the only point to be passed
upon is:" Deberia el Juzgado ordenar o no el administrador
Pedro Adapon la inclusion en el inventario de la testamentaria el
credito y bienes especificados por Felisa Maralit en su aludido
escrito?" It is not seen how the probate court can determine the
respective merits of the conflicting claims made by the
administrator and the oppositor without necessarily declaring the
lawful ownership of the properties involved. Such a declaration is
necessary and inevitable, and without it the, probate court cannot
properly proceed and dispose of the petition submitted by the.
oppositor.
Under section 599 of the Code Of Civil Procedure, the probate
jurisdiction of the Court of First Instance relates only to matters
having to do with "the settlement of estates and probate of wills of
deceased persons, the appointment and removal of guardians
and trustees, and the powers, duties, and rights of guardians and
wards, trustees, and cestuis que trust." As may be seen, the law
does not extend the jurisdiction of a probate court to the
determination of questions of ownership that arise during the
proceeding.
In the case of Bauermann v. Casas (10 Phil., 392-393), this court,
in passing upon the same question now raised, observed that "the
mere fact that one of the parties is an executor or administrator of
a certain estate does not give exclusive jurisdiction to the probate
court wherein the estate is being settled, of questions arising
between such executors or administrators and third persons, as to
the ownership of specific property. of course when it is once
determined that certain property is the property of the estate,
exclusive jurisdiction over the administration of such property
vests in the court wherein the estate is being settled, but until this
question is decided the mere allegation that certain property is the
property of an estate in course of administration is not sufficient to
oust all other courts of jurisdiction over questions touching the
ownership of such property and rights based on the right of
ownership." In Devesa v. Arbes (13 Phil., 281), the same doctrine
was reiterated with greater force and emphasis, the Court there
holding that "a contested claim of an administrator that certain
rights of possession and ownership are the property of the estate
which he represents must be determined in a separate action,
and not in the course of the administration proceedings." Again,
this Court in Guzman v. Anog and Anog (37 Phil., 62-63), decided
that "when questions arise as to the ownership of property,
alleged to be a part of the estate of a deceased person, but
claimed by some other person to be his property, not by virtue of
any right of inheritance from the deceased, but by title adverse to
that of the deceased and his estate, such questions cannot be
determined in the course of administration proceedings. The
Court of First Instance, acting as a probate court, has no
jurisdiction to adjudicate such contentions, which must be
submitted to the court in the exercise of its general jurisdiction as
a Court of First Instance to try and determine the ordinary actions
mentioned in the Code of Civil Procedure." Finally, in the case of
Lunsod v. Ortega (46 Phil., 676), where the same question was
presented, the Court reaffirmed the principle enunciated in the

foregoing cases b stating that "it is an established doctrine of this

court that the mere fact that one of the parties is the executor or
administrator of the estate of a deceased person does not confer
upon the probate court, in which the proceedings for the
distribution and settlement of said estate are pending, exclusive
jurisdiction to decide all questions that may arise between the
said executor or administrator and third persons as to the title of a
specific property."cralaw virtua1aw library
Furthermore, section 697 of the Code of Civil Procedure provides
that:jgc:chanrobles.com.ph
"If the executor or administrator has a claim against the estate he
represents, he shall give notice thereof, in writing, to the court,
and the court shall appoint a special administrator who shall, in
the adjustment of such claim, have the same power and be
subject to the same liability as the general administrator or
executor in the settlement of other claims. The court may order
the executor or administrator to pay to the special administrator
necessary funds to defend such claim."cralaw virtua1aw library
In the final analysis, therefore, we think that the appealed order of
the lower court is in accordance with, and finds support in, the
provisions of the law and the established doctrine of the court.
Counsel for the administrator-appellant calls our attention to the
unpublished decision of this court in Antonia Lete de Morales v.
Michaela Lete y Cornell (R. G. No. 37497), where it was resolved
that "a fin de evitar multiplicidad de pleitos, opinamos que en el
presente caso el Juez en su jurisdiccion ordinaria podia resolver
la cuestion planteada como asi lo hizo." We have carefully
examined the entire record of that case, and we are of the opinion
that the present case stands upon a different factual basis.
Primarily, in the first case, proof consisting of "Exhibit 1 and the
testimony of one Ponciano Morales" had already been presented
to, and admitted by the probate court establishing the ownership
of the property in the estate, whereas in the present case, only
the claim of the administrator to some of the properties mentioned
in the petition of the oppositor, praying for the inclusion of the said
properties in the inventory of the estate, appears on the record.
That the decision in that case did not revoke the settled rulings of
this court on the point can be further gleaned from the fact that
the decision itself states that "pero con arreglo a las doctrinas
sentadas en los asuntos de De los Santos contra Jarra, 15 Jur.
Fil., 153, y Guzman contra Anog, 37 Jur. Fil., 66, el Juzgado no
tenia competencia para resolver la cuestion sobre posesion y
propiedad de los inmuebles en cuestion."cralaw virtua1aw library
Judgment is affirmed with costs against the petitioner-appellant.
So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepion, JJ.,
concur.