G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner, vs.THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO URIARTE, respondents.Norberto J. Quisumbing for petitioner.

Taada, Teehankee & Carreon for respondents.DIZON, J.:On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari docketed as G.R. L-21938 against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and the Manila Court, respectively praying:

... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to dismiss the later-instituted Special Proceeding No. 51396, supra, both special proceedings pertaining to the settlement of the same estate of the same deceased, and consequently annulling all proceedings had in Special Proceeding No. 51396; supra, of the respondent Manila court as all taken without jurisdiction.

For the preservation of the rights of the parties pending these proceedings, petitioner prays for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396, supra, until further orders of this Court.

Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344, supra, in the Negros court.

The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963.

On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939 praying, for the reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for reconsideration, and further commanding said court to approve his record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the petition for certiorari.

It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank never actually qualified as special administrator.

On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's capacity and interest to commence the intestate proceeding.On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion to Dismiss.

Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court.

On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing from said orders to this court on questions of law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court issued the following order:

Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed for having been filed out of time and for being incomplete. In the meantime, before the said record on appeal was approved by this Court, the petitioner filed a petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs. Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely before the Supreme Court on questions of law which is tantamount to petitioner's abandoning his appeal from this Court.

WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby disapproved.

In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1 of the same year.It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered.

The record further discloses that the special proceeding before the Negros Court has not gone farther than the appointment of a special administrator in the person of the Philippine National Bank who, as stated heretofore, failed to qualify.On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings.

Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate.The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court.

Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate of deceased persons whether they died testate or intestate. While their jurisdiction over such subject matter is beyond question, the matter of venue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided 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. Accordingly, when the estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y Goite the Courts of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila Courts province and city where the deceased Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396.It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings.Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court particularly in Special Proceeding No. 6344 or was entitled to commence the corresponding separate proceedings, as he did, in the Manila Court.The following considerations and the facts of record would seem to support the view that he should have submitted said will for probate to the Negros Court, either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and inexpensive administration of justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been requested for submission to said court; and when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the Negros Court.

But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper venue therefor.

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).

Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion, and so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the said supplemental petition is successful, it will only result in compelling the Negros Court to give due course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the supplemental petition for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner.

EMILIO ADVINCULA, Petitioner, vs. HONORABLE JUDGE JOSE TEODORO, SR., Judge of the Court of First Instance of Negros Occidental, and ENRIQUE A. LACSON, Respondents.D E C I S I O N

CONCEPCION, J.:Petitioner Emilio Advincula seeks a writ of certiorari, to annul certain orders of the Court of First Instance of Negros Occidental.

Said Petitioner was, on November 22, 1954, appointed, special administrator of the estate of his deceased wife, Josefa Lacson Advincula, in special proceeding No. 3245 of said court. In due course, he was, on February 12, 1955, appointed regular administrator of said estate. After Advincula had qualified as such, the brothers of the deceased, who left no issue, submitted to the court, for allowance, a document purporting to be her last will and testament. Petitioner opposed the probate thereof upon the ground that it did not bear the signature of the deceased; that the signature thereon, if hers, was secured through fraud and duress; and that, the instrument had not been executed with the requisite formalities. On May 4, 1955, Respondent Enrique Lacson, one of the brothers of the deceased, filed a motion praying that he be appointed administrator of said estate, in lieu of Petitioner herein, for the reason that said Respondent is the executor named in the aforementioned alleged will. On or about May 16, 1955, Attys. Jose Y. Torres and Antonio Lozada, as counsel for Advincula, filed an opposition to said motion. When the latter was called for hearing on May 18, 1955, Atty. Lozada was served, in open court, copy of an amended motion, of Respondent Lacson, for change of administrator, dated May 14, 1955. It was alleged therein, in addition to the ground set forth in the first motion:chanroblesvirtuallawlibrary5. That the present administrator is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate, and without changing or removing him as such would be disastrous to the estate and to the heirs named in the will of the decedent.

Atty. Lozada asked a postponement of the hearing upon the ground that Advinculas main counsel, Atty. Torres, was in Manila, but his request was denied. Then, after hearing the argument of opposing counsel, the court, presided over by Respondent, Honorable Jose Teodoro, Sr., Judge, issued, on the same date (May 18, 1955), an order the pertinent parts of which read:chanroblesvirtuallawlibraryThe Court, after hearing the oral arguments of both parties, finds the motion for postponement not well-taken and hereby denies the same; chan roblesvirtualawlibraryand finding the motion dated May 4, 1955 as amended by the amended motion dated May 14, 1955, well-founded and the opposition thereto dated May 16, 1955 not well-founded, said motion is hereby granted.WHEREFORE, in the interest of justice and for the preservation of the property for the heirs, the appointment of Emilio Advincula as administrator is hereby revoked and in his stead, the Oppositor, Enrique A. Lacson, is hereby appointed administrator of this intestate estate, and same may qualify by filing a bond in the sum of P5,000 and taking and subscribing the corresponding oath of Office. Once said Enrique A. Lacson has qualified, let letters of administration issue in his favor.The former administrator, Emilio Advincula, is hereby ordered to submit within ten (10) days from receipt hereof, his final account covering the entire period of his administration and should it appear that any deficiency has been incurred by him during his incumbency, his bond shall answer for said deficiency.

Thereupon, Lacson gave the requisite bond, letters of administration was issued to him, and he tried to take possession of the estate of the deceased. A reconsideration of said order of May 18, 1955, having been denied by another order, dated May 30, 1955, Petitioner instituted the present action for certiorari, against Lacson and Judge Teodoro, to annul his aforesaid orders of May 18 and 30, 1955, upon the ground that the same were issued with grave abuse of discretion. Upon the filing of a bond by Advincula, we issued, as prayed for in his petition, a writ of preliminary injunction restraining Respondent Lacson and his agents from interfering, molesting and harassing the Petitioner in the administration of the estate of the deceased, during the pendency of this case.The writ of certiorari prayed for is in order. Lacsons appointment, in lieu of Advincula, as administrator of the estate of Josefa Lacson Advincula, is predicated upon the fact that the former is named executor in the alleged will of said deceased. The provision therein to this effect cannot be enforced, however, until after said document has been allowed to probate, for section 4 of Rule 79 of the Rules of Court provides:When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these rules. (Italics supplied.)

Besides, the discovery of a document purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been proved and allowed by the court. Rule 83, section 1, of the Rules of Court, is plain and explicit on this point.If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, end render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. (Italics supplied.)The amended motion for change of administrator endeavored to justify the removal of Advincula by alleging that he is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate of the deceased. By holding, in its order of May 18, 1955, that said motion is well-founded with nothing, absolutely nothing else, to indicate the basis of this conclusion Respondent Judge has impliedly adopted the line of argument followed in the above quoted allegation of the amended motion to change administrator. Said argument is, however, devoid of merit.It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be competent, capable and fit to administer her estate, in much the same as a member of her immediate family could be incompetent, incapable and unfit to do so. At any rate, Advincula is not a stranger, either to her or to her estate, he bring her surviving spouse and, as such, one of her forced heirs (Arts. 887, 888, 892, 893, 894, 897 to 900, and 995 to 1001, Civil Code of the Philippines), whether she died testate or intestate. What is more, he is prima facie entitled to one-half of all property subject to the authority of the administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for all property of the marriage is presumed to belong to the conjugal partnership of which he is its administrator (Article 165, Civil Code of the Philippines) unless it be proved that it pertains exclusively to the husband or to the wife (See Articles 160 and 185, Civil Code of the Philippines). Lastly, Advincula has not been found guilty of any specific act or omission constituting one of the legal grounds, enumerated in Rule 83, section 2, of the Rules of Court, for the removal of an executor or administrator. Hence, it is clear that Respondent Judge exceeded his jurisdiction in removing Advincula and appointing Lacson as administrator of the estate of the deceased Josefa Lacson Advincula.Wherefore, the aforementioned orders of Respondent Judge, dated May 8 and 30, 1955, are reversed, and the writ of preliminary injunction issued in this case hereby made permanent, with costs against Respondent Enrique A. Lacson. It is SO ORDERED.G.R. No. L-19265 May 29, 1964

MOISES SAN DIEGO, SR., petitioner, vs.ADELO NOMBRE and PEDRO ESCANLAR, respondents.A. R. Castaeda and M. S. Roxas for petitioner.Amado B. Parreo Law Office for respondents. PAREDES, J.:The case at bar had its origin in Special Proceedings No. 7279 of the CFI of Negros Occidental wherein respondent Adelo Nombre was the duly constituted judicial administrator. On May 1, 1960, Nombre, in his capacity was judicial administrator of the intestate estate subject of the Sp. Proc. stated above, leased one of the properties of the estate (a fishpond identified as Lot No. 1617 of the cadastral survey of Kabankaban, Negros Occidental), to Pedro Escanlar, the other respondent. The terms of the lease was for three (3) years, with a yearly rental of P3,000.00 to expire on May 1, 1963, the transaction having been done, admittedly, without previous authority or approval of the Court where the proceedings was pending. On January 17, 1961, Nombre was removed as administrator by Order of the court and one Sofronio Campillanos was appointed in his stead. The appeal on the Order of Nombre's removal is supposedly pending with the Court of Appeals. Respondent Escanlar was cited for contempt, allegedly for his refusal to surrender the fishpond to the newly appointed administrator. On March 20, 1961, Campillanos filed a motion asking for authority to execute a lease contract of the same fishpond, in favor of petitioner herein, Moises San Diego, Sr., for 5 years from 1961, at a yearly rental of P5,000.00. Escanlar was not notified of such motion. Nombre, the deposed administrator, presented a written opposition to the motion of Campillanos on April 11, 1964, pointing out that the fishpond had been leased by him to Escanlar for 3 years, the period of which was going to expire on May 1, 1963. In a supplemental opposition, he also invited the attention of the Court that to grant the motion of the new administrator would in effect nullify the contract in favor of Escanlar, a person on whom the Court had no jurisdiction. He also intimated that the validity of the lease contract entered into by a judicial administrator, must be recognized unless so declared void in a separate action. The opposition notwithstanding, the Court on April 8, 1961, in effect declared that the contract in favor of Escanlar was null and void, for want of judicial authority and that unless he would offer the same as or better conditions than the prospective lessee, San Diego, there was no good reason why the motion for authority to lease the property to San Diego should not be granted. Nombre moved to reconsider the Order of April 8, stating that Escanlar was willing to increase the rental of P5,000.00, but only after the termination of his original contract. The motion for reconsideration was denied on April 24, 1961, the trial judge stating that the contract in favor of Escanlar was executed in bad faith and was fraudulent because of the imminence of Nombre's removal as administrator, one of the causes of which was his indiscriminate pleasant, of the property with inadequate rentals.

From this Order, a petition for Certiorari asking for the annulment of the Orders of April 8 and 24, 1961 was presented by Nombre and Escanlar with the Court of Appeals. A Writ of preliminary injunction was likewise prayed for to restrain the new administrator Campillanos from possessing the fishpond and from executing a new lease contract covering it; requiring him to return the possession thereof to Escanlar, plus damages and attorney's fees in the amount of P10,000.00 and costs. The Court of Appeals issued the injunctive writ and required respondents therein to Answer. Campillanos insisted on the invalidity of the contract in favor of Escanlar; the lower court alleged that it did not exactly annul or invalidate the lease in his questioned orders but suggested merely that Escanlar "may file a separate ordinary action in the Court of general jurisdiction."

The Court of Appeals, in dismissing the petition for certiorari, among others said

The controlling issue in this case is the legality of the contract of lease entered into by the former administrator Nombre, and Pedro Escanlar on May 1, 1960.

Respondents contend that this contract, not having been authorized or approved by the Court, is null and void and cannot be an obstacle to the execution of another of lease by the new administrator, Campillanos. This contention is without merit. ... . It has been held that even in the absence of such special powers, a contract or lease for more than 6 years is not entirely invalid; it is invalid only in so far as it exceeds the six-year limit (Enrique v. Watson Company, et al., 6 Phil. 84). 1 No such limitation on the power of a judicial administrator to grant a lease of property placed under his custody is provided for in the present law. Under Article 1647 of the present Civil Code, it is only when the lease is to be recorded in the Registry of Property that it cannot be instituted without special authority. Thus, regardless of the period of lease, there is no need of special authority unless the contract is to be recorded in the Registry of Property. As to whether the contract in favor of Escanlar is to be so recorded is not material to our inquiry. 1wph1.tOn the contrary, Rule 85, Section 3, of the Rules of Court authorizes a judicial administrator, among other things, to administer the estate of the deceased not disposed of by will. Commenting on this Section in the light of several Supreme Court decisions (Jocson de Hilado v. Nava, 69 Phil. 1; Gamboa v. Gamboa, 68 Phil. 304; Ferraris v. Rodas, 65 Phil. 732; Rodriguez v. Borromeo, 43 Phil. 479), Moran says: "Under this provision, the executor or administrator has the power of administering the estate of the deceased for purposes of liquidation and distribution. He may, therefore, exercise all acts of administration without special authority of the Court. For instance, he may lease the property without securing previously any permission from the court. And where the lease has formally been entered into, the court cannot, in the same proceeding, annul the same, to the prejudice of the lessee, over whose person it had no jurisdiction. The proper remedy would be a separate action by the administrator or the heirs to annul the lease. ... .

On September 13, 1961, petitioner herein Moises San Diego, Sr., who was not a party in the case, intervened and moved for a reconsideration of the above judgment. The original parties (the new administrator and respondent judge) also filed Motions for reconsideration, but we do not find them in the record. On November 18, 1961, the Court of Appeals denied the motions for reconsideration. With the denial of the said motions, only San Diego, appealed therefrom, raising legal questions, which center on "Whether a judicial administrator can validly lease property of the estate without prior judicial authority and approval", and "whether the provisions of the New Civil Code on Agency should apply to judicial administrators." The Rules of Court provide that

An executor or administrator shall have the right to the possession of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration, and shall administer the estate of the deceased not disposed of by his will. (Sec. 3, Rule 85, old Rules).

Lease has been considered an act of administration (Jocson v. Nava; Gamboa v. Gamboa; Rodriguez v. Borromeo; Ferraris v. Rodas, supra).

The Civil Code, on lease, provides:

If a lease is to be recorded in the Registry of Property, the following persons cannot constitute the same without proper authority, the husband with respect to the wife's paraphernal real estate, the father or guardian as to the property of the minor or ward, and the manager without special power. (Art. 1647).

The same Code, on Agency, states:

Special powers of attorneys are necessary in the following cases:

(8) To lease any real property to another person for more than one year. (Art. 1878)

Petitioner contends, that No. 8, Art. 1878 is the limitation to the right of a judicial administrator to lease real property without prior court authority and approval, if it exceeds one year. The lease contract in favor of Escanlar being for 3 years and without such court approval and authority is, therefore, null and void. Upon the other hand, respondents maintain that there is no limitation of such right; and that Article 1878 does not apply in the instant case.

We believe that the Court of Appeals was correct in sustaining the validity of the contract of lease in favor of Escanlar, notwithstanding the lack of prior authority and approval. The law and prevailing jurisprudence on the matter militates in favor of this view. While it may be admitted that the duties of a judicial administrator and an agent (petitioner alleges that both act in representative capacity), are in some respects, identical, the provisions on agency (Art. 1878, C.C.), should not apply to a judicial administrator. A judicial administrator is appointed by the Court. He is not only the representative of said Court, but also the heirs and creditors of the estate (Chua Tan v. Del Rosario, 57 Phil. 411). A judicial administrator before entering into his duties, is required to file a bond. These circumstances are not true in case of agency. The agent is only answerable to his principal. The protection which the law gives the principal, in limiting the powers and rights of an agent, stems from the fact that control by the principal can only be thru agreements, whereas the acts of a judicial administrator are subject to specific provisions of law and orders of the appointing court. The observation of former Chief Justice Moran, as quoted in the decision of the Court of Appeals, is indeed sound, and We are not prone to alter the same, at the moment.

We, likewise, seriously doubt petitioner's legal standing to pursue this appeal. And, if We consider the fact that after the expiration of the original period of the lease contract executed by respondent Nombre in favor of Escanlar, a new contract in favor of said Escanlar, was executed on May 1, 1963, by the new administrator Campillanos. who, incidentally, did not take any active participation in the present appeal, the right of petitioner to the fishpond becomes a moot and academic issue, which We need not pass upon.

WHEREFORE, the decision appealed from should be, as it is hereby affirmed, in all respects, with costs against petitioner Moises San Diego, Sr. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala and Makalintal, JJ., concur.Padilla, Labrador and Dizon, JJ., took no part. LUZ CARO, petitioner, vs.HONORABLE COURT OF APPEALS and BASILIA LAHORRA VDA. DE BENITO, AS ADMINISTRATRIX OF THE INTESTATE ESTATE OF MARIO BENITO, respondents.

GUERRERO, J.:This is a petition for certiorari under Rule 45 of the Revised Rules of Court seeking a review of the decision of the Court of Appeals, 1 promulgated on February 11, 1977, in CA-G.R. No. 52570-R entitled "Basilia Lahorra Vda. de Benito, as Administratrix of the Intestate Estate of Mario Benito vs. Luz Caro", as well as the resolution of the respondent Court, dated May 13, 1977, denying petitioner's Motion for Reconsideration.

The facts of the case are as follows:

Alfredo Benito, Mario Benito and Benjamin Benito were the original co-owners of two parcels of land covered by Transfer Certificates of Title Nos. T-609 and T-610 of the Registry of Deeds of Sorsogon. Mario died sometime in January, 1957. His surviving wife, Basilia Lahorra and his father, Saturnino Benito, were subsequently appointed in Special Proceeding No. 508 of the Court of First Instance of Sorsogon as joint administrators of Mario's estate.

On August 26, 1959, one of the co-owners, Benjamin Benito, executed a deed of absolute sale of his one-third undivided portion over said parcels of land in favor of herein petitioner, Luz Caro, for the sum of P10,000.00. This was registered on September 29, 1959. Subsequently, with the consent of Saturnino Benito and Alfredo Benito as shown in their affidavits both dated September 15, 1960, Exhibits G and F respectively, a subdivision title was issued to petitioner Luz Caro over Lot I-C, under T.C.T. No. T-4978.

Sometime in the month of May, 1966, private respondent Basilia Lahorra Vda. de Benito learned from an allegation in a pleading presented by petitioner in Special Proceeding No. 508 that the latter acquired by purchase from Benjamin Benito the aforesaid one-third undivided share in each of the two parcels of land. After further verification, she sent to petitioner thru her counsel, a written offer to redeem the said one-third undivided share dated August 25, 1966. Inasmuch as petitioner ignored said offer, private respondent sought to intervene in Civil Case No. 2105 entitled "Rosa Amador Vda. de Benito vs. Luz Caro" for annulment of sale and mortgage and cancellation of the annotation of the sale and mortgage involving the same parcels of land, but did not succeed as the principal case was dismissed on a technicality, that is, for failure to prosecute and the proposed intervenor failed to pay the docketing fees. Private respondent, thus, filed the present case as an independent one and in the trial sought to prove that as a joint administrator of the estate of Mario Benito, she had not been notified of the sale as required by Article 1620 in connection with Article 1623 of the New Civil Code.

On the other hand, petitioner presented during the hearing of the case secondary evidence of the service of written notice of the intended sale to possible redemptioners in as much as the best thereof, the written notices itself sent to and Saturnino Benito, could not be presented for the reason that said notices were sent to persons who were already dead when the complaint for legal redemption was brought. Instead, the affidavit of Benjamin Benito, executed ante litem motam, attesting to the fact that the possible redemptioners were formally notified in writing of his intention to sell his undivided share, was presented in evidence. The deposition of Saturnino's widow was likewise taken and introduced in evidence, wherein she testified that she received and gave to her husband the written notice of the intended sale but that the latter expressed disinterest in buying the property.

After hearing the evidence, the trial judge dismissed the complaint on the grounds that: (a) private respondent, as administratrix of the intestate estate of Mario Benito, does not have the power to exercise the right of legal redemption, and (b) Benjamin Benito substantially complied with his obligation of furnishing written notice of the sale of his one-third undivided portion to possible redemptioners.

Private respondent's Motion for Reconsideration of the trial court's decision having been denied, she appealed to the respondent Court of Appeals contending that the trial Judge erred in

I. . . not inhibiting himself from trying and deciding the case because his son is an associate or member of the law office of Atty. Rodolfo A. Madrid, the attorney of record of defendant-appellee in the instant case;

II. . contending that Benjamin Benito complied with the provisions of Article 1623 of the Revised Civil Code that before a co-owner could sell his share of the property owned in common with the other co-heirs, he must first give written notice of his desire to his co-heirs; (p. 49, R.A.)

III. concluding that the fact that one of the administrators who was actively managing the estate was furnished a written notice by the co-owner of his desire to sell his share was enough compliance of the provisions of Article 1623 of the Civil Code for the reason that the intention of the law is only to give a chance to the new co-owner to buy the share intended to be sold if he desires to buy the same; (p. 50, R.A.)

IV. . refusing to allow plaintiff to redeem the subject property upon authority of Butte vs. Manuel Uy & Sons, L-15499, Feb. 28, 1962 (p. 51, R.A.) and in consequently dismissing the complaint (p. 52, R.A.).

In disposing of the aforesaid errors, the Court of Appeals finding for plaintiff (herein private respondent) held:

1. That it is not clear that Atty. Arcangel, son of the trial Judge, was legally associated as practitioner with counsel for Luz Caro; that it is not shown at any rate that plaintiff had asked for Judge Arcangel's disqualification and that at any rate also, in such factual situation, an optional ground for disqualification is addressed to his sound discretion with which it would not be correct for appellate court to interfere or overrule.

2. That since the right of the co-owner to redeem in case his share be sold to a stranger arose after the death of Mario Benito, such right did not form part of the hereditary estate of Mario but instead was the personal right of the heirs, one of whom is Mario's widow. Thus, it behooved either the vendor, Benjamin, or his vendee, Luz Caro, to have made a written notice of the intended or consummated sale under Article 1620 of the Civil Code.

3. That the recital in the deed of sale that the vendor notified his co-owners of his desire to dispose of his share, who all declined to buy, was but a unilateral statement and could not be proof of the notice required by the law.

4. That the registration of the deed of sale did not erase that right.

5. That the affidavit of notice executed on January 20, 1960 of Benjamin Benito declaring that written notices of the sale as required by law were duly sent to Alfredo Benito and Saturnino Benito, the latter in his capacity as administrator of the estate of Mario Benito, as well as the sworn statement of Saturnino Benito's widow dated November 18, 1968 confirming that her husband received the written notice of the sale referred to in Benjamin Benito's affidavit of notice would not satisfy that there was clear notice in writing of the specific term of the intended sale. Worse, Saturnino was only a co-administrator and hence, his unilateral act could not bind the principal because there was no less than a renunciation of a right pertaining to the heirs, under Article 1818, NCC, apart from the fact that the right of redemption is not within their administration.

6. That the further claim of defendant that offer to redeem was filed out of time and that there was no actual tender loses all importance, there being no date from which to count the 30-day period to redeem because there was no notice given.

The dispositive part of the decision of the Court of Appeals reads as follows:

IN VIEW THEREOF, this Court is constrained to reverse, as it now reverses, judgment appealed from, upon payment by plaintiff or deposit in Court, within 30 days after this judgment should have become final, of the sum of P10,000.00, defendant is ordered to execute a deed of redemption over the one-third share of BENJAMIN BENITO in favor of plaintiff for herself and as representative of the children of Mario Benito and therefrom, to deliver said one-third share of BENJAMIN BENITO, costs against defendant-appellee.

SO ORDERED.

Upon denial of the motion for reconsideration, petitioner brought this petition for review raising the following errors:

1. Respondent Court erred in allowing the exercise of the right of legal redemption with respect to the lots in question.

2. Respondent Court erred when it made the finding that there was no notice in law from which to count the tolling of the period of redemption and that the sale was not made known at all to private respondent.

The alleged first error of respondent Court is premised on the fact that the lot in question sought to be redeemed is no longer owned in common. Petitioner contends that the right sought to be exercised by private respondent in the case assumes that the land in question is under co-ownership, the action being based on Article 1620 of the New Civil Code which provides:

A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or any of them, are sold to a third person. If the price of alienation is grossly excessive, the petitioner shall pay only a reasonable price.

Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common.

However, the fact is that as early as 1960, co-ownership of the parcels of land covered by Transfer Certificates of Title Nos. T-609 and T-610 was terminated when Alfredo Benito, Luz Caro and the Intestate Estate of Mario Benito, represented by administrators Saturnino Benito, as trustee and representative of the heirs of Mario Benito, agreed to subdivide the property.

An agreement of partition, though oral, is valid and consequently binding upon the parties. (Hernandez vs. Andal, et al., 78 Phil. 196)

A petition for subdivision was then filed for the purpose. This was accompanied by the affidavits of Alfredo Benito and Saturnino Benito, both dated September 15, 1960 to the effect that they agree to the segregation of the land formerly owned in common by Mario Benito, Alfredo Benito and Benjamin Benito. A subdivision plan was made and by common agreement Lot I-C thereof, with an area of 163 hectares, more or less, was ceded to petitioner. Thereafter, the co-owners took actual and exclusive possession of the specific portions respectively assigned to them. A subdivision title was subsequently issued on the lot assigned to petitioner, to wit, Transfer Certificate of Title No. T-4978.

In Caram, et al. vs. Court of Appeals, et al., 101 Phil. 315, a case squarely in point, this Court held:

Inasmuch as the purpose of the law in establishing the right of legal redemption between co-owners is to reduce the number of participants until the community is done away with (Viola vs. Tecson, 49 Phil. 808), once the property is subdivided and distributed among the co-owners, the community has terminated and there is no reason to sustain any right of legal redemption.

Although the foregoing pronouncement has reference to the sale made after partition, this Court therein saw no difference with respect to a conveyance which took place before the partition agreement and approval by the court. Thus, it held:

Nevertheless, the result is the same, because We held in Saturnino vs. Paulino, 97 Phil. 50, that the right of redemption under Article 1067 may be exercised only before partition. In this case the right was asserted not only after partition but after the property inherited had actually been subdivided into several parcels which were assigned by lot to the several heirs.

In refutation, private respondent argues that petitioner Luz Caro acted in bad faith and in fraud of the rights of the heirs of a deceased Mario Benito in obtaining a subdivision title over a one-third portion of the land in question which she brought from Benjamin Benito, and for this reason, she is deemed to hold said property in trust for said heirs. The rule, however, is it fraud in securing the registration of titles to the land should be supported by clear and convincing evidence. (Jaramil vs. Court of Appeals, 78 SCRA 420). As private respondent has not shown and proved the circumstances constituting fraud, it cannot be held to exist in this case.

As aforesaid, a subdivision title has been issued in the name petitioner on the lot ceded to her. Upon the expiration of the term of one year from the date of the entry of the subdivision title, the Certificate of Title shall be incontrovertible (Section 38, Act 496). Since the title of petitioner is now indefeasible, private respondent cannot, by means of the present action, directly attack the validity thereof.

Even on the assumption that there still is co-ownership here and that therefore, the right of legal redemption exists, private respondent as administratrix, has no personality to exercise said right for and in behalf of the intestate estate of Mario Benito. She is on the same footing as co-administrator Saturnino Benito. Hence, if Saturnino's consent to the sale of the one-third portion to petitioner cannot bind the intestate estate of Mario Benito on the ground that the right of redemption was not within the powers of administration, in the same manner, private respondent as co-administrator has no power exercise the right of redemption the very power which the Court of Appeals ruled to be not within the powers of administration.

While under Sec. 3, Rule 85, Rules of Court, the administrator has the right to the possession of the real and personal estate of the deceased, so far as needed for the payment of the expenses of administration, and the administrator may bring and defend action for the recovery or protection of the property or right of the deceased (Sec. 2, Rule 88), such right of possession and administration do not include the right of legal redemption of the undivided share sold to a stranger by one of the co-owners after the death of another, because in such case, the right of legal redemption only came into existence when the sale to the stranger was perfected and formed no part of the estate of the deceased co-owner; hence, that right cannot be transmitted to the heir of the deceased co-owner. (Butte vs. Manuel Uy and Sons, Inc., 4 SCRA 526).

Private respondent cannot be considered to have brought this action in her behalf and in behalf of the heirs of Mario Benito because the jurisdictional allegations of the complaint specifically stated that she brought the action in her capacity as administratrix of the intestate estate of Mario Benito.

It is petitioner's contention that, assuming that private respondent may exercise the right of redemption, there was no compliance with the conditions precedent for the valid exercise thereof.

In Conejero et al. vs. Court of Appeals, et al., 16 SCRA 775, this Court explained the nature of the right of redemption in this wise:

While the co-owner's right of legal redemption is a substantive right, it is exceptional in nature, limited in its duration and subject to strict compliance with the legal requirements. One of these is that the redemptioner should tender payment of the redemption money within thirty (30) days from written notice of the sale by the co-owner.

It has been held that this thirty-day period is peremptory because the policy of the law is not to leave the purchaser's title in uncertainty beyond the established 30-day period. (Butte vs. Manuel Uy and Sons, Inc., 4 SCRA 526). It is not a prescriptive period but is more a requisite or condition precedent to the exercise of the right of legal redemption.

In the case at bar, private respondent alleged in her complaint that she learned of the sale sometime in May, 1966 upon receipt of a pleading in Special Proceeding No. 508 of the Court of First Instance of Sorsogon. She likewise alleged that she gave a letter informing petitioner of her desire to redeem the land on August 25, 1966. Clearly, three months have elapsed since the notice of the sale. Hence, petitioner claims that the thirty-day period of redemption has already expired. In addition, petitioner makes capital of the admission of private respondent that she already knew of the said transaction even before receipt of the said pleading (t.s.n., p. 16) as well as of the evidence presented that Saturnino Benito, the admittedly active administrator until 1966, duly received a written notice of the intended sale of Benjamin Benito's share. Said evidence consists of the affidavit of the vendor stating that the required notice had been duly given to possible redemptioners, the statement in the deed of sale itself and the deposition of Saturnino Benito's widow with respect to her receipt of the written notice. Finally, petitioner points to the records which disclose that private respondent knew of the subdivision (t.s.n., p. 25) and hence, rationalized that private respondent should have known also of the previous sale.

Since We have ruled that the right of legal redemption does not exist nor apply in this case because admittedly a subdivision title (T.C.T. No. T-4978) has already been issued in the name of the petitioner on Lot I-C sold to her, it becomes moot and academic, if not unnecessary to decide whether private respondent complied with the notice requirements for the exercise of the right of legal redemption under Article 1623 of the New Civil Code.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Court of Appeals is hereby REVERSED and SET ASIDE, and judgment is hereby rendered DISMISSING the complaint.

SO ORDERED.

G.R. No. L-29276 May 18, 1978

Testate Estate of the Late Felix J. de Guzman. VICTORINO G. DE GUZMAN, administrator-appellee, vs.CRISPINA DE GUZMAN-CARILLO, ARSENIO DE GUZMAN and HONORATA DE GUZMAN-MENDIOLA, oppositors-appellants. Emiliano Samson & R. Balderama-Samson for appellants.

Cezar Paralejo for appellee. AQUINO, J.:This case is about the propriety of allowing as administration expenses certain disbursements made by the administrator of the testate estate of the late Felix J. de Guzman of Gapan, Nueva Ecija.

The deceased testator was survived by eight children named Victorino, Librada, Severino, Margarita, Josefina, Honorata, Arsenio and Crispina. His will was duly probated. Letters of administration were issued to his son, Doctor Victorino G. de Guzman, pursuant to the order dated September 17, 1964 of the Court of First Instance of Nueva Ecija in Special Proceeding No. 1431.

One of the properties left by the dent was a residential house located in the poblacion. In conformity with his last will, that house and the lot on which it stands were adjudicated to his eight children, each being given a one-eighth proindiviso share in the project of partition dated March 19, 1966, which was signed by the eight heirs and which was approved in the lower court's order of April 14, 1967 but without prejudice to the final outcome of the accounting.

The administrator submitted four accounting reports for the period from June 16, 1964 to September, 1967. Three heirs Crispina de Guzmans-Carillo Honorata de Guzman-Mendiola and Arsenio de Guzman interposed objections to the administrator's disbursements in the total sum of P13,610.48, broken down as follows:

I. Expense for the improvement and renovation of the decedent's residential house.

1. Construction of fence P3,082.07

2. Renovation of bathroom P1,389.52

3. Repair of terrace and

interior of house P5,928.00 P10,399.59

II. Living expenses of Librada de Guzman while occupying the family home without paying rent:

1. For house helper P1,170.00

2. Light bills 227.41

3. Water bills 150.80

4. Gas oil, floor wax

and switch nail 54.90 P 1,603.11

III. Other expenses:

1. Lawyer's subsistence P 19.30

2. Gratuity pay in lieu

of medical fee 144.00

3. For stenographic notes 100.00

4. For food served on

decedent's first

death anniversary 166.65

5. Cost of publication of

death anniversary

of decedent 102.00

6. Representation

expenses 26.25 P558.20

IV. Irrigation fee P1.049.58

TOTAL P13,610.48

It should be noted that the probate court in its order of August 29, 1966 directed the administrator "to refrain from spending the assets of the estate for reconstructing and remodeling the house of the deceased and to stop spending (sic) any asset of the estate without first during authority of the court to do so" (pp. 26-27, Record on Appeal).

The lower court in its order of April 29, 1968 allowed the d items as legitimate expenses of administration. From that order, the three oppositors appealed to this Court. Their contention is that the probate court erred in approving the utilization of the income of the estate (from rice harvests) to defray those expenditures which allegedly are not allowable under the Rules of Court.

An executor or administrator is allowed the necessary expenses in the care, management, and settlement of the estate. He is entitled to possess and manage the decedent's real and personal estate as long as it is necessary for the payment of the debts and the expenses of administration. He is accountable for the whole decedent's estate which has come into his possession, with all the interest, profit, and income thereof, and with the proceeds of so much of such estate as is sold by him, at the price at which it was sold (Sec. 3, Rule 84; Secs. 1 and 7, Rule 85, Rules of Court).

One of the Conditions of the administrator's bond is that he should render a true and just account of his administration to the court. The court may examine him upon oath With respect to every matter relating to his accounting 't and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributes, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on any matter relating to an administration account." (Sec. 1[c] Rule 81 and secs. 8 and 9, Rule 85, Rules of Court).

A hearing is usually held before an administrator's account is approved, especially if an interested Party raises objections to certain items in the accounting report (Sec. 10, Rule 85).

At that hearing, the practice is for the administrator to take the witness stand, testify under oath on his accounts and Identify the receipts, vouchers and documents evidencing his disbursements which are offered as exhibits. He may be interrogated by the court and crossed by the oppositors's counsel. The oppositors may present proofs to rebut the ad. administrator's evidence in support of his accounts.

I. Expenses for the renovation and improvement of the family residence P10,399.59. As already shown above, these expenses consisted of disbursements for the repair of the terrace and interior of the family home, the renovation of the bathroom, and the construction of a fence. The probate court allowed those expenses because an administrator has the duty to "maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devises" when directed to do so by the court (Sec. 2, Rule 84, Rules of Court).

On the other hand, the oppositors-appellants contend that the trial court erred in allowing those expenses because the same did not come within the category of necessary expenses of administration which are understood to be the reasonable and necessary expenses of caring for the property and managing it until the debts are paid and the estate is partitioned and distributed among the heirs (Lizarraga Hermanos vs. Abada, 40 Phil. 124).

As clarified in the Lizarraga case, administration expenses should be those which are necessary for the management of the estate, for protecting it against destruction or deterioration, and, possibly, for the production of fruits. They are expenses entailed for the preservation and productivity of the estate and its management for purposes of liquidation, payment of debts, and distribution of the residue among the persons entitled thereto.

It should be noted that the family residence was partitioned proindiviso among the decedent's eight children. Each one of them was given a one-eighth share in conformity with the testator's will. Five of the eight co-owners consented to the use of the funds of the estate for repair and improvement of the family home. It is obvious that the expenses in question were incurred to preserve the family home and to maintain the family's social standing in the community.

Obviously, those expenses redounded to the benefit of an the co- owners. They were necessary for the preservation and use of the family residence. As a result of those expenses, the co-owners, including the three oppositors, would be able to use the family home in comfort, convenience and security.

We hold that the probate court did not err in approving the use of the income of the estate to defray those ex

II. Expenses incurred by Librada de Guzman as occupant of the family residence without paying rent P1 603.11 The probate court allowed the income of the estate to be used for those expenses on the theory that the occupancy of the house by one heir did not deprive the other seven heirs from living in it. Those expenses consist of the salaries of the house helper, light and water bills, and the cost of gas, oil floor wax and switch nail

We are of the opinion that those expenses were personal expenses of Librada de Guzman, inuring y to her benefit. Those expenses, not being reasonable administration expenses incurred by the administrator, should not be charged against the income of the estate.

Librada de Guzman, as an heir, is entitled to share in the net income of the estate. She occupied the house without paying rent. She should use her income for her living expenses while occupying the family residence.

The trial court erred in approving those expenses in the administrator's accounts. They should be, as they are hereby, disallowed (See 33 C.J.S 1239-40).

III. Other expenses P558.20. Among these expenses is the sum of P100 for stenographic notes which, as admitted by the administrator on page 24 of his brief, should be disallowed. Another item, "representation expenses" in the sum of P26.25 (2nd accounting), was not explained. it should likewise be disallowed.

The probate court erred in allowing as expenses of ad. administration the sum of P268.65 which was incurred during the celebration of the first death anniversary of the deceased. Those expenses are disallowed because they have no connection with the care, management and settlement of the decedent's estate (Nicolas vs. Nicolas 63 Phil 332).

The other expenses, namely, P19.30 for the lawyer's subsistence and P144 as the cost of the gift to the physician who attended to the testator during his last s are allowable expenses.

IV. Irrigation fee P1,049.58. The appellants question the deductibility of that expense on the ground that it seems to be a duplication of the item of P1,320 as irrigation fee for the same 1966-67 crop-year.

The administrator in his comment filed on February 28, 1978 explained that the item of P1,320 represented the "allotments" for irrigation fees to eight tenants who cultivated the Intan crop, which allotments were treated as "assumed expenses" deducted as farming expenses from the value of the net harvests.

The explanation is not quite clear but it was not disputed by the appellants. The fact is that the said sum of P1,049.58 was paid by the administrator to the Penaranda Irrigation System as shown in Official Receipt No. 3596378 dated April 28, 1967. It was included in his accounting as part of the farming expenses. The amount was properly allowed as a legitimate expense of administration.

WHEREFORE, the lower court's order of April 29, 1968 is affirmed with the modifications that the sum of (a) P1,603.11 as the living expenses of Librada de Guzman. (b) P100 for stenographic notes, (c) P26.25 as representation expenses, and (d) P268.65 as expenses for the celebration of the first anniversary of the decedent's death are disallowed in the administrator's accounts. No costs.

SO ORDERED.

[G.R. No. 74618. September 2, 1992.]

ANA LIM KALAW, Petitioner, v. THE HONORABLE INTERMEDIATE APPELLATE COURT, THE HONORABLE RICARDO B. DIAZ and ROSA LIM KALAW, Respondents.

Alberto R. De Joya for Petitioner.

Cheng, Martinez & Associates for Private Respondent.SYLLABUS1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ACCOUNTABILITY OF ADMINISTRATOR, WHEN TO RENDER ACCOUNTS; RULE AND EXCEPTION. The rendering of an accounting by an administrator of his administration within one year from his appointment is mandatory, as shown by the use of the word "shall" in said rule. The only exception is when the Court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate, which do not exist in the case at bar.

2. ID.; ID.; REMOVAL OF ADMINISTRATOR; JUSTIFIED, FOR NEGLIGENCE TO RENDER AN ACCOUNTING OF HIS ADMINISTRATION AS REQUIRED BY LAW. subsequent compliance in rendering an accounting report did not purge her of her negligence in not rendering an accounting for more than six years, which justifies petitioners removal as administratrix and the appointment of private respondent in her place as mandated by Section 2 of Rule 82 of the Rules of Court. As correctly stated by the appellate court: "The settled rule is that the removal of an administrator under Section 2 of Rule 82 lies within the discretion of the Court appointing him. As aptly expressed by the Supreme Court in the case of Degala v. Ceniza and Umipig, 78 Phil. 791, the sufficiency of any ground for removal should thus be determined by said court, whose sensibilities are, in the first place, affected by any act or omission on the part of the administrator not comfortable to or in disregard of the rules or the orders of the court. Consequently, appellate tribunals are disinclined to interfere with the action taken by a probate court in the matter of the removal of an executor or administrator unless positive error or gross abuse of discretion is shown. (Borromeo v. Borromeo, 97 Phil. 549; Matute v. Court of Appeals, 26 SCRA 768.) In the case at bar, the removal of petitioner as administratrix was on the ground of her failure for 6 years and 3 months from the time she was appointed as administratrix to render an accounting of her administration as required by Section 8 of Rule 85 of the Rules of Court."

D E C I S I O NNOCON, J.:This is a petition for certiorari, prohibition and mandamus with preliminary injunction to annul and set aside the decision dated December 27, 1985 of the then Intermediate Appellate Court 1 affirming the decision of the Regional Trial Court of Manila, Branch 27 in Special Proceeding No. 84520 removing petitioner Ana Lim Kalaw as administratrix and appointing private respondent Rosa Lim Kalaw in her stead as the administratrix of the estate of their late father Carlos Lim Kalaw.

It appears on record that Carlos Lim Kalaw died intestate on July 8, 1970.chanrobles.com:cralaw:red

On June 8, 1972, Victoria Lim Kalaw filed an amended petition for the issuance of Letters of Administration with the then Court of First Instance of Manila in Special Proceeding No. 84520 naming Ana Lim Kalaw (63 years old), Victoria Lim Kalaw (57 years old), Pura Lim Kalaw (53 years old) and Rosa Lim Kalaw (43 years old) as the surviving heirs of the late Carlos Lim Kalaw.

On April 25, 1974, the trial court issued an order appointing petitioner Ana Lim Kalaw as special administratrix. Consequently, petitioner filed a preliminary inventory of all the properties which came into her possession as special administratrix of the estate of her late father on June 3, 1974.

On October 6, 1977, the trial court issued another order appointing petitioner as the judicial administratrix of said estate and a Letter of Administration was issued to the petitioner after the latter took her oath of office on November 11, 1977.

Thereafter, Jose Lim filed a motion to require petitioner to render an accounting of her administration of said estate which was granted by respondent Judge Ricardo Diaz in an order dated December 8, 1982.chanrobles law library

On July 1, 1983, respondent judge issued another order requiring petitioner to render an accounting of her administration with the express instruction that said order be personally served upon the petitioner since the order dated December 8, 1982 was returned to the Court unserved. However, said order was also not received by the petitioner.

On January 31, 1984, private respondent Rosa Lim Kalaw together with her sisters Victoria and Pura Lim Kalaw filed a motion to remove petitioner as administratrix of their fathers estate and to appoint instead private respondent on the ground of negligence on the part of petitioner in her duties for failing to render an accounting of her administration since her appointment as administratrix more than six years ago in violation of Section 8 of Rule 85 of the Revised Rules of Court. The motion was set for hearing on February 10, 1984.

On February 21, 1984, respondent judge issued another order requiring petitioner to render an accounting within 30 days from receipt thereof which she did on March 22, 1984. She likewise filed on the same date, her Opposition to the motion praying for her removal as administratrix alleging that the delay in rendering said accounting was due to the fact that Judge Carlos Sundiam, who was the judge where the intestate proceeding was assigned, had then been promoted to the Court of Appeals causing said sala to be vacated for a considerable length of time, while newly-appointed Judge Joel Tiongco died of cardiac arrest soon after his appointment to said vacancy, so much so that she did not know to whom to render an accounting report.

In their Rejoinder and Manifestation, private respondent and her co-movant alleged that the ground relied upon for petitioners removal was not the delay but her failure or neglect to render an accounting of all the properties which came into her possession as required under Section 1 of Rule 83 of the Revised Rules of Court.chanrobles.com : virtual law library

On January 4, 1985, the trial court rendered a decision, the dispositive portion of which reads:jgc:chanrobles.com.ph

"From the foregoing, the Court finds that Administratrix Ana Lim Kalaw violated the provisions of Section 8, Rule 85 of the Rules of Court for not rendering an account of her administration within one (1) year from date of receipt of the letters of administration and this constitutes negligence on her part to perform her duty as Administratrix and under Section 2, Rule 82 of the Rules of Court, neglect on the part of the administratrix to render her account is a ground for her removal as an administratrix. Finding the instant motion to remove Administratrix to be meritorious and well-taken, the same is, as it is hereby, GRANTED.

WHEREFORE, Administratrix Ana Lim Kalaw is hereby REMOVED as such Administratrix of the Estate of the late Carlos Lim Kalaw." 2

On September 2, 1985, Petitioner, without waiting for the resolution of the motion for reconsideration with the trial court, filed a Petition for Certiorari with Preliminary Injunction or Restraining Order with the then Intermediate Appellate Court to annul and set aside the following Orders issued by respondent Judge Diaz, as follows:jgc:chanrobles.com.ph

"a. Order dated January 4, 1985 removing the Petitioner as Administratrix of the estate of the late Carlos Lim Kalaw;

b. Order dated April 30, 1985 denying Petitioners Motion for Reconsideration of the Order of January 4, 1985;

c. Order dated May 13, 1985 appointing private Respondent Rosa Lim Kalaw, as Administratrix of said Estate;chanroblesvirtualawlibrary

d. Order dated June 19, 1985 directing the tenants and/or lessees of the Carlos Lim Kalaw building to deposit the rentals in court and authorizing private respondent to break open the premises in said building." 3

On December 27, 1985, the appellate court rendered a decision, the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the petition for certiorari is DENIED. However, respondent Judge is directed to require private respondent Rosa Lim Kalaw to post the appropriate administrators bond within ten (10) days from notice hereof. With costs against petitioner." 4

On January 21, 1986, petitioner filed a motion for reconsideration of said decision which was however denied for lack of merit on May 12, 1986.

Hence, this petition alleging grave abuse of discretion on the part of the appellate court in sustaining respondent Judge Diaz order removing her as judicial administratrix considering that she had already submitted an accounting report covering the period from December, 1977 to December, 1983 in compliance with respondents Judge order.

Section 8 of Rule 85 of the Revised Rules of Court provides that:jgc:chanrobles.com.ph

"SEC. 8. When executor or administrator to render account. Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration, unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled." chanrobles law library

The rendering of an accounting by an administrator of his administration within one year from his appointment is mandatory, as shown by the use of the word "shall" in said rule. The only exception is when the Court otherwise directs because of extensions of time for presenting claims against the estate or for paying the debts or disposing the assets of the estate, which do not exist in the case at bar.

Furthermore, petitioners excuse that the sala where the intestate proceeding was pending was vacant most of the time deserves scant consideration since petitioner never attempted to file with said court an accounting report of her administration despite the fact that at one time or another, Judge Sundiam and Judge Tiongco were presiding over said sala during their incumbency.

Likewise, her subsequent compliance in rendering an accounting report did not purge her of her negligence in not rendering an accounting for more than six years, which justifies petitioners removal as administratrix and the appointment of private respondent in her place as mandated by Section 2 of Rule 82 of the Rules of Court. 5

As correctly stated by the appellate court:jgc:chanrobles.com.ph

"The settled rule is that the removal of an administrator under Section 2 of Rule 82 lies within the discretion of the Court appointing him. As aptly expressed by the Supreme Court in the case of Degala v. Ceniza and Umipig, 78 Phil. 791, the sufficiency of any ground for removal should thus be determined by said court, whose sensibilities are, in the first place, affected by any act or omission on the part of the administrator not comfortable to or in disregard of the rules or the orders of the court. Consequently, appellate tribunals are disinclined to interfere with the action taken by a probate court in the matter of the removal of an executor or administrator unless positive error or gross abuse of discretion is shown. (Borromeo v. Borromeo, 97 Phil. 549; Matute v. Court of Appeals, 26 SCRA 768.)chanrobles lawlibrary : rednad

In the case at bar, the removal of petitioner as administratrix was on the ground of her failure for 6 years and 3 months from the time she was appointed as administratrix to render an accounting of her administration as required by Section 8 of Rule 85 of the Rules of Court." 6

As to petitioners contention that she was denied due process when she was removed as administratrix since no hearing was held on the motion for her removal, this does not deserve serious consideration. The appellate courts disposal of this issue is in accordance with the law and evidence. Said the Court:jgc:chanrobles.com.ph

"Petitioners contention that her removal was without due process is certainly not borne out by the records. There has been a hearing and, in fact, several pleadings had been filed by the parties on the issue before the order of removal was issued. Thus, the motion to remove petitioner as administratrix was filed on January 3, 1984, which motion was set for hearing on February 10, 1984. Petitioner filed an opposition to the motion on March 22, 1984. This was followed by a Rejoinder and Manifestation filed on April 6, 1984 by private Respondent. The order for petitioners removal was issued on January 4, 1985, or after almost a year from the time the motion to remove her was filed. Not satisfied with this order, petitioner filed a motion for reconsideration on January 14, 1985, to which motion private respondent filed an opposition on January 25, 1985. Petitioner filed a rejoinder to the opposition on February 18, 1985. Respondent Judge issued his order denying the motion for reconsideration on April 30, 1985. This recital of events indubitably disproves petitioners allegation that she was not afforded due process." 7

WHEREFORE, finding no merit in the petition for certiorari, prohibition and mandamus with preliminary injunction, the same is hereby DENIED. Costs against petitioner.chanroblesvirtualawlibrary

SO ORDERED.

G.R. No. L-29414 July 17, 1928

TEODORICO UY TIOCO, petitioner, vs.CARLOS IMPERIAL, Judge of First Instance of Manila, and ALEJANDRO M. PANIS, respondents.Marcelo Nubla for petitioner.The respondent Judge in his own behalf.Alejandro M. Panis in his own behalf and in behalf of the respondent judge.OSTRAND, J.:This is a petition for a writ of prohibition to restrain the respondent judge from compelling the petitioner to pay the sum of P11,250 to the other respondent, Alejandro Panis, out of the funds of the estate of the deceased Basilisa Yangco, of which estate said petitioner is the administrator.

It appears from the record that the respondent Panis was counsel for the administration of said estate and that he on October 31, 1927, before the final settlement of accounts, presented a motion in the probate proceedings for the allowance of attorney's fees in the sum of P15,000. On December 5, 1927, the respondent judge, over the objections in writing presented by the administrator, granted the motion and allowed the fees claimed by Panis. The administrator, the herein petitioner, did not appeal from the order of the court, but on February 8, 1928, Jacinto Yangco, in his capacity as guardian ad litem of the minors Pedro and Bruno Uy Tioco, the sons and then the only heirs of the deceased, presented a motion for reconsideration under section 113 of the Code of Civil Procedure on the grounds that he was not notified of the motion for the allowance of fees and had no knowledge thereof or of the order granting the motion until a few days before the filing of there motion for reconsideration; that the fees allowed Panis were excessive and prejudicial to the interest of the estate; and that considering the nature of the work performed, the services rendered with him did not warrant the payment of the sum claimed. This motion was denied on February 15, 1928, the respondent judge holding that while the heirs of the deceased were not notified by the hearing of the motion for allowance of attorney's fees, such notice was duly served upon the administrator; that was a sufficient compliance with the law; that curador ad litem might have the right to intervene in the case but have no absolute right to be notified of the motion; that the provisions of section 113 of the Code of Civil Procedure were not applicable to the case; and that, in any event, the motion for reconsideration is entirely without merit.

On February 23, 1928, the guardian ad litem excepted to the order of February 15, 1928, and gave notice of his intention to appeal to the Supreme Court. On the 28th of the same month, Attorney Felix Wijangco, on behalf of Panis, filed a motion in the probated proceedings in which be set forth that the minor Bruno Uy Tioco is now deceased and that his share of inheritance will go to his father, the herein petitioner; that the property involved in the case is community property in which one-half belongs to the petitioner; that consequently the minor Pedro Uy Tioco is only entitled to a one-fourth of the property pertaining to the estate, and that therefore his appeal from the order allowing the attorney's fees can only relate to one-fourth of the amount allowed, wherefore the movent asked that the administrator be ordered to make payments of three-fourths of the amount within five days from the presentation of the motion. To this motion the guardian ad litem objected, but under the date of March 6, 1928, the respondent judge ordered the administrator to make payment of three-fourths of P15,000 within five days. The administrator refused to make such payment, and on March 17th the court, after citing him to show cause, again ordered him to pay as provided for in the order of March 6, under penalty of removal from office. The present action was thereupon brought. Upon filing the petition the respondent were ordered to answer, as ordered, the respondents submitted a demurrer which we, considering that there can be no dispute as to the essential facts, shall regard as a sufficient answer to said petition.

In our opinion, the petition must be granted. The orders of March 6th and 7th for a partial payment of the fees claimed were issued after an appeal had been taken and perfected by the filing of an appeal bond approved by the court. The appeal was taken from the order of February 15 denying the motion for reopening and reconsideration of the allowance for attorney's fees and involves the validity of that order and the finality of the order of December 5, 1927. Whether this orders were valid and final need not be here determined, but they are appealable, and we are not aware of any provision of law authorizing the lower court to enforce the immediate execution of such orders and probate proceedings after an appeal has been perfected. The interest of the appellee are supposed to be sufficiently protected by an adequate bond.

The arguments submitted indicate a misconception of the character of the liability for the attorney's fees are claimed are supposed to have been rendered to the executor or administrator to assist him in the execution of his trust. The attorney can therefore not hold the estate directly liable for his fees; such fees are allowed to the executor or administrator and not to the attorney. The liability for the payment rests on the executor or administrator, but if the fees paid are beneficial to the estate and reasonable, he is entitled to the reimbursement from the estate. Such payment should be included in his accounts and the reimbursement therefore settled upon the notice prescribed in section 682 of the Code of Civil Procedure. (See Church on Probate Law and Practice, pp. 1570-1588 and authorities there cited; Woerner on the American Law of Administration, 2d ed., sections 515 and 516.)

For the reasons stated the respondent judge is hereby prohibited from enforcing the payment of the attorney's fees above-mentioned until the appeal taken by Jacinto Yangco, as guardian ad litem for the minor Pedro Uy Tioco, has been passed upon by this court or dismissed. No costs will be allowed. So ordered.