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In the matter of the Intestate of the deceased Andres Eusebio.

Eugenio Eusebio, petitioner

and appellee, vs. Amanda Eusebio, Virginia Eusebio, Juan Eusebio, et al., oppositors and
December 28, 1956 | Concepcion
Petitioner Eugenio Eusebio filed with the CFI of Rizal a petition for his appointment as
administrator of the estate of his father, Andres Eusebio. He alleged that his father, who died on
November 28, 1952, resided in Quezon City. Eugenios siblings (Amanda, Virginia, Juan, Delfin,
Vicente and Carlos), stating that they are illegitimate children of Andres, opposed the petition and
alleged that Andres was domiciled in San Fernando, Pampanga. They prayed that the case be
dismissed upon the ground that venue had been improperly laid.
The CFI of Rizal granted Eugenios petition and overruled his siblings objection.
Issue: Whether venue had been properly laid in Rizal?
Held: No. Don Andres Eusebio up to October 29, 1952, was and had always been domiciled in San
Fernando, Pampanga. He only bought a house and lot at 889-A Espana Extension, Quezon City
because his son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City.
Even before he was able to transfer to the house he bought, Andres suffered a stroke and was
forced to live in his sons residence. It is well settled that domicile is not commonly changed by
presence in a place merely for one owns health even if coupled with knowledge that one will
never again be able, on account of illness, to return home. Having resided for over seventy years in
Pampanga, the presumption is that Andres retained such domicile.
Andres had no intention of staying in Quezon City permanently. There is no direct evidence of such
intent Andres did not manifest his desire to live in Quezon City indefinitely; Eugenio did not
testify thereon; and Dr. Jesus Eusebio was not presented to testify on the matter. Andres did not
part with, or alienate, his house in San Fernando, Pampanga. Some of his children remained in that
municipality. In the deed of sale of his house at 889 A Espana Ext., Andres gave San Fernando,
Pampanga, as his residence. The marriage contract signed by Andres when he was married
in articulo mortis to Concepcion Villanueva two days prior to his death stated that his residence is
San Fernando, Pampanga.
The requisites for a change of domicile include (1) capacity to choose and freedom of choice, (2)
physical presence at the place chosen, (3) intention to stay therein permanently. Although Andres
complied with the first two requisites, there is no change of domicile because the third requisite is
Anent the contention that appellants submitted themselves to the authority of the CFI of Rizal
because they introduced evidence on the residence of the decedent, it must be noted that appellants

specifically made of record that they were NOT submitting themselves to the jurisdiction of the
court, except for the purpose only of assailing the same.
In sum, the Court found that Andres was, at the time of his death, domiciled in San Fernando,
Pampanga; that the CFI of Rizal had no authority, therefore, to appoint an administrator of the
estate of the deceased, the venue having been laid improperly.
Doctrine: Domicile once acquired is retained until a new domicile is gained. It is not changed by
presence in a place for ones own health.
#18 De Borja v. Vda. De BorjaG.R. No. L-28040, August 18, 1972

Upon the death of his wife, Josefa Tangco, Francisco de Borja filed a petition for probate of her will.
He was appointed executor and administrator; their son, Jose de Borja, was appointed coadministrator. His son Jose became the sole administrator when he died.

While a widower Francisco de Borja his second wife, Tasiana Ongsingco. Upon Francisco'sdeath,
Tasiana instituted testate proceedings in the CFI of Nueva Ecija, wherein she wasappointed special

The relationship between the children of the first marriage and Tasiana Ongsingco has beenplagued
with several court suits and counter-suits.

Jose and Tasiana entered into a compromise agreement. When submitted to the court for approval
the Rizal court approved the compromise agreement, but the Nueva Ecija courtdeclared it void and
unenforceable. Tasiana appealed the order of approval contending that thecompromise agreement
is not valid: (1) the heirs cannot enter into such kind of agreementwithout first probating the will of
Francisco de Borja; (2) that the same involves a compromise onthe validity of the marriage between
Francisco de Borja and Tasiana Ongsingco; and (3) thateven if it were valid, it has ceased to have
force and effect.

Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in
Guevaravs. Guevara
, wherein the Court held that the presentation of a will for probate is mandatory andthat the
settlement and distribution of an estate on the basis of intestacy when the decedent left awill, is
against the law and public policy.

On the other hand, in claiming the validity of the compromise agreement, Jose de Borja stressesthat
at the time it was entered into, the governing provision was Section 1, Rule 74 of the originalRules
of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceasedperson
regardless of whether he left a will or not.ISSUE: Whether the compromise agreement is valid,
even if the will of Francisco has not yet beenprobated.HELD: Yes. Decision appealed from is

The agreement stipulated that Tasiana will receive P800,000 as full payment for her
hereditaryshare in the estate of Francisco and Josefa. This provision evidences beyond doubt that
theruling in the Guevara case is not applicable to the cases at bar. There was here no attempt
tosettle or distribute the estate of Francisco de Borja among the heirs thereto before the probate

of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of
anyand all her individual share and interest, actual or eventual, in the estate of Franciscode Borja
and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee.

And as a hereditary share in a decedent's estate is transmitted or vested immediately from

themoment of the death of such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting
capacity) disposing of her or his hereditary share immediately after such death, even if the actual
extent of such share is notdetermined until the subsequent liquidation of the estate.

Also, as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory
heir.Therefore determining the validity of the agreement is unnecessary since her
successionalinterest existed independent of Francisco de Borja's last will and testament and would
exist evenif such will were not probated at all. Thus, the prerequisite of a previous probate of the
will, asestablished in the Guevara and analogous cases, can not apply to the case

ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in
this suit by their attorney-in-fact, ROSE BUSH MALIG, plaintiffs-appellants,
MARIA SANTOS BUSH, defendant-appellee.
Dewey G. Soriano for plaintiffs-appellants.
Feria, Feria, Lugtu and La'O for defendant-appellee.
This is an appeal by the plaintiffs from two orders of the Court of First Instance of Manila in Civil
Case No. 51639, the first dismissing the complaint and the second denying the motion to
reconsider the order of dismissal.
On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the
acknowledged natural children and the only heirs in the direct line of the deceased John T.
Bush, having been born of the common-law relationship of their father with Apolonia Perez from
1923 up to August, 1941; that said John T. Bush and Apolonia Perez, during the conception of
the plaintiffs, were not suffering from any disability to marry each other; that they lived with their
alleged father during his lifetime and were considered and treated by. him as his acknowledge
natural children; that said John T. Bush, at the time of his death, left several real and personal
properties; that the defendant, by falsely alleging that she was the legal wife of the deceased
was able to secure her appointment as administratrix of the estate of the deceased in Testate
Proceedings No. 29932 of the Court of First Instance of Manila; that she submitted to the court
for approval a project of partition, purporting to show that the deceased left a will whereby he
bequeathed his estate to three persons, namely: Maria Santos Bush, Anita S. Bush and Anna
Berger; that the defendant then knew that the plaintiffs were the acknowledged natural children
of the deceased; and that they discovered the fraud and misrepresentation perpetrated by the
defendant only in July, 1962. They prayed that the project of partition be annulled; that the
defendant be ordered to submit a complete inventory and accounting of all the properties left by
the deceased and another project of partition adjudicating to the plaintiffs their legal participation
in the said estate and/or in the event that the defendant had disposed of all or part of the estate,

that she be ordered to pay them the market value thereof; and that the defendant be ordered to
pay for the value of the fruits received, damages and attorney's fees.
The defendant moved to dismiss, alleging lack of cause of action, res judicata and statute of
limitations. The plaintiffs opposed and the defendant filed a reply to the opposition. On January
10, 1963 the lower court denied the motion, "it appearing that the grounds upon which said
motion is based are not indubitable." In time, the defendant filed her answer specifically denying
all the material averments of the complaint and invoking laches,res judicata and statute of
limitations as affirmative defenses.
After the issues were joined the case was set for hearing, but on the date thereof the hearing
was postponed upon the defendant's manifestation that she would file a written motion to
dismiss. The motion, when filed, challenged the jurisdiction of the court, stating that since the
action was one to annul a project of partition duly approved by the probate court it was that
court alone which could take cognizance of the case, citing Rule 75, Section 1, of the Rules of
Court. On October 31, 1963 the lower court granted the motion and dismissed the complaint,
not on the ground relied upon by the defendant but because the action had prescribed. The
plaintiffs moved to reconsider but were turned down; hence, this appeal.
The procedural question posed by appellants is: May the lower court dismiss an action on a
ground not alleged in the motion to dismiss?
It must be remembered that the first motion to dismiss, alleging lack of cause of action, res
judicata and statute of limitations, was denied because those grounds did not appear to the
court to be indubitable. The second motion reiterated none of those grounds and raised only the
question of jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower
court in effect did so motu proprio, without offering the plaintiffs a chance to argue the point. In
fact the court did not even state in its order why in its opinion the action had prescribed, and
why in effect, without any evidence or new arguments on the question, it reversed its previous
ruling that the ground of prescription was not indubitable.
In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held:
Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it
specifically ordains that a motion to this end be filed. In the light of this express requirement
we do not believe that the court had power to dismiss the case without the requisite motion
duly presented. The fact that the parties filed memoranda upon the court's indication or order
in which they discussed the proposition that the action was unnecessary and was improperly
brought outside and independently of the case for libel did not supply the deficiency. Rule 30
of the Rules of Court provides for the cases in which an action may be dismissed, and the
inclusion of those therein provided excludes any other, under the familiar maxims,inclusio
unius est exclusivo ulterius. The only instance in which, according to said Rules, the court
may dismiss upon the court's own motion an action is, when the 'plaintiff fails to appear at
the time of the trial or to prosecute his action for an unreasonable length of time or to comply
with the Rules or any order of the court.

The foregoing ruling is applicable in this case, because although a motion to dismiss had been
presented defendant the resolution of the court granting the same was based upon a ground not
alleged in said motion. But assuming that the lower court could properly consider the question of
prescription anew, the same still did not appear to be indubitable on the face of the allegations
in the complaint. The defendant cites Article 137 of the Civil Code, which provides that an action

for acknowledgment of natural children may be commenced only during the lifetime of the
putative parents, except in two instances not obtaining in this case, and that the present action
was commenced after the death of the putative father of the plaintiffs. The said provision is not
of indubitable application, since the plaintiffs do not seek acknowledgment but allege as a
matter of fact that they "are the acknowledged natural children and the only heirs in the direct
line of the late John T. Bush." Whether or not this allegation is true will, of course, depend upon
the evidence to be presented at the trial.
The defendant insists in this instance on the jurisdictional ground posed in her motion to
dismiss, citing Rule 75, Section 1, of the Rules of Court formerly in force (now Rule 73, Section
1), which says:
SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not be contested
in a suit or proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record.

It will be noted that the foregoing rule fixes jurisdiction for purposes of the special proceeding for
the settlement of the estate of a deceased person, "so far as it depends on the place of
residence of the decedent, or of the location of his estate." The matter really concerns venue, as
the caption of Rule cited indicates, and in order to preclude different courts which may properly
assume jurisdiction from doing so, the Rule specifies that "the court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
In the final analysis this action is not necessarily one to annul the partition already made and
approved by the probate court, and to reopen the estate proceeding so that a new partition may
be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which,
through fraud, they have been deprived.
Without prejudice to whatever defenses may be available to the defendant, this Court believes
that the plaintiffs' cause should not be foreclosed without a hearing on the merits.
WHEREFORE, the orders appealed from are set aside and the case remanded for further
proceedings. Costs against the defendant-appellee in this instance.
66 Phil 594
November 28,1938; Avancena


Action for annulment of sale of the property made by the sheriff

Spouses Eulalio Calma and Fausta Macasaquit were the owners of the property described in the complaint, being their conjugal property. They were
also indebted to Esperanza Taedo, chargeable against the conjugal property, in the sums of P948.34 and P247 (w/ interest of 20%). Fausta Macasaquit died
leaving a will wherein she appointed her daughter, Maria Calma, as administratrix of her properties. In the probate proceedings in the Court of First Instance of
Tarlac, the said daughter, Maria Calma, was appointed judicial administratrix of the properties of the deceased.
While the probate proceedings were pending, Esperanza Tanedo, filed a complaint against Eulalio Calma for the recovery of the sums of P948.34
and P247. CFI Tarlac rendered judgment for the payment of this sum. In the execution of this judgment, despite the third party claim filed by Fausta Macasaquit,
the property described in the complaint was sold by the sheriff.

WON complaint can be brought against deceased Eulalio Calma (having ceased as legal administrator of the conjugal property had with his wife Fausta
Macasaquit) for the recovery of an indebtedness chargeable against said conjugal property


No complaint can be brought against him for the recovery of an indebtedness chargeable against said conjugal property, and that the action should
be instituted in the testamentary proceedings of the deceased Fausta Macasaquit in the manner provided by law, by filing it first with the committee
on claims.The probate proceedings of the deceased Fausta Macasaquit were instituted in accordance with Act No. 3176 reading:
SEC. 685. 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 shall be paid, in the testamentary or intestate proceedings of the deceased spouse, in accordance with the provisions of this Code relative to the
administration and liquidation and partition proceeding, unless the parties, being all of age and legally capacitated, avail themselves of the right granted to them by this
Code of proceeding to an extrajudicial partition and liquidation of said property. In case it is necessary to sell any portion of said community property in order to pay the
outstanding debts and obligations of the same, such sale shall be made in the manner and with the formalities established by this Code for the sale of the property of
deceased persons. Any sale, transfer, alienation or disposition of said property effected without said formalities shall be null and void, except as regards the portion that
belonged to the vendor at the time the liquidation and partition was made.

Prior to this Act, the liquidation of conjugal property was made under section 685 of the Code of Civil Procedure. Interpreting the scope of Act No. 3176, this
court, in the case of Caragay vs. Urquiza, said that the amendment introduced by this Act consists in authorizing the institution of testate or intestate
proceedings for the settlement of the estate of a deceased spouse or of an ordinary action for the liquidation and partition of the property of a
conjugal partnership. It should be understood that these remedies are alternative, and not cumulative, in he sense that they cannot be availed of at he
same time, inasmuch as an anomalous and chaotic situation would result if conjugal property were administered, liquidated and distributed at the
same time in a testamentary proceeding and in an ordinary action for liquidation and partition of property. Consequently, the testamentary proceedings
of Fausta Macasaquit having been instituted, the liquidation and partition of the conjugal property by reason of her marriage to Eulalio Calma should be made in
these proceedings, to the exclusion of any other proceeding for the same purpose.

In the case of Cruz vs. De Jesussaid that when the marriage is dissolved by the death of the wife, the legal power of management of the husband ceases,
passing to the administrator appointed by the court in the testate or intestate proceedings instituted to that end if there be any debts to be paid. This doctrine has
been confirmed in the other case of Ona vs. De Gala


When Esperanza Tanedo brought suit against Eulalio Calma for the payment of the sums, the power of Eulalio Calma. legal administrator of the conjugal
property while Fausta Macasaquit was living, had ceased and passed to the administratrix Maria Calma appointed in the testamentary proceedings of Fausta
Having to be filed according to Act No. 3176 under the provisions of the Code of Civil Procedure relative to the administration and liquidation of
properties of deceased persons, it should be filed before the committee on claims in said testamentary proceedings and, at all events, thereafter, by
appeal to the corresponding Court of First Instance, in an ordinary action against the judicial administratrix. On the other hand, the property described in
the complaint is included among the inventoried properties subject to the testamentary proceedings of Fausta Macasaquit because, belonging as it does to the
conjugal property, it should, under Act No. 3176, be included among the properties of the testamentary proceedings.
DISPOSITION The sale of the property described in the complaint, made by the sheriff in execution of the judgment rendered against Eulalio Calma for the
collection of the indebtedness chargeable against the conjugal property, is void and said property should be deemed subject to the testamentary proceedings of
the deceased Fausta Macasaquit for all the purposes of that case.

Bengzon; June 14, 1967
30 SCRA 331

-Pio Duran died without testament.
-Subsequent to his death, 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 consideration.
-A year later Cipriano Duran filed a petition for intestate proceedings to settle Pio Duran's estate, further asking that he be named the administrator. Josefina
Duran filed 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 afore-stated. Replying to this, Cipriano alleged that Josefina Duran was not the decedents wife. Anent the deed of assignment, he contended
that the same was procured thru fraud, with gross inadequacy of price and vitiated by lesion.
-Another brother of the decedent, Miguel Duran, filed 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.
-Court of First Instance dismissed the action for 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.
-Cipriano appeals relying on In Re Irene Santos.

WON 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 the
assigning heir does not lose his status as a person interested in the estate, even after said assignment is approved by the court.

Yes, but such does not apply to the case at bar.
-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 the estate. As a result, any
assignment regarding the same had to be approved by said court. And since the approval of the court is not deemed final until the estate is closed, the assigning
heir remains an interested person in the 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 extra judicial 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 vs. 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, the 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 petition for settlement proceedings.
Miguel Durans petition 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 admit to ratification of the petition for settlement under the ruling in
Eusebio vs. Valmores, since she did so merely by way of an alternative prayer, should her motion to dismiss fail. And said motion to dismiss was properly


61 SCRA 527
FERNANDEZ ; December 26, 1974

This is a petition for certiorari impugning the legality of the order of CFI nullifying its order of execution issued on August 18, 1973 pursuant to the judgment that
has become final and executory on June 28, 1973, and the corresponding levy on execution on August 22, 1973 and the public auction sale held on October 2,

- Severino Paredes filed a suit on Jan. 4, 1964 for the collection of separation and overtime pays against his employer, August Kuntze.
- decision was rendered against Kuntze, from which judgment, he appealed to the CA.
- While the case was pending appeal, Kuntze died on June 19, 1972. Paredes was duly notified.
- Carmencita D. Navarro Kuntze, administratrix of the estate of the deceased, was substituted in his place as party in the appealed case. CA dismissed the
appeal for appellant's failure to file the printed record on appeal, and so the record of the case was ordered remanded respondent court.
- A motion for execution was filed by Paredes. The provincial Sheriff of Rizal levied on the properties of Kuntze (now substituted by the Administratrix
Carmencita) consisting of 2 lots. In the auction sale conducted by the Sheriff, Paredes being the highest bidder, acquired said lot.
- However, in spite of a Motion to Quash the Writ of Execution filed by Carmencita and still pending resolution, Parades sold the property he acquired in
execution sale in favor of his co-petitioner, Victorio Ignacio on October 10, 1973.
- CFI, on November 2, 1973, issued an order setting aside the Writ of Execution and the Sheriff's Sale and Public Auction of the property, without prejudice to the
filing of the judgment as a claim in the proceedings for settlement of the estate of the deceased.

1. WON the death of Kuntze arrested the judgment against him.

2. WON Paredes erred in executing on the properties of Kuntze.

1. NO
- In the case of a money claim, where the defendant dies during the pendency of his appeal from the judgment rendered against him, the appeal should not be
dismissed; it should continue, but the deceased defendant should be substituted by his legal representative, namely, the executor or administrator of the estate. If
the judgment of the lower court is affirmed, the plaintiff must afterwards go to the probate court for an order directing the executor or administrator to satisfy the
judgment. The CFI that originally rendered the judgment has no power to order its execution and a levy on the properties of the deceased because the same are
already in custodia legis in the probate court where administration proceedings for the settlement of the estate of the deceased defendant are already pending.
- Sec.21 Rule 3 of the ROC provides: When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the
Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in these rules.
Conversely, if the defendant dies after final judgment has been rendered by the CFI, as in the case at bar, the action survives. Consequently, contrary to
respondents' claim, the judgment against the deceased Kuntze became final and executory; it was not arrested by his death.
2. YES
- The proper remedy of plaintiff Paredes should have been to file his claim in the administration proceedings of the estate of the deceased defendant Kuntze
where Carmencita is the administratrix
- Judgment for money against the decedent, must be filed at the time limited in the notice (to creditors) before the court where the administration proceeding
involving the estate of the deceased Kuntze are pending. Sec.5, Rule 86 of the ROC provides:
All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral
expenses and expenses for the last sickness of the decedent and judgment for money against the decedent, must be filed (before the probate court) within the
time limited in the notice (to the creditors); otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants.
- The judgment for money against the deceased stands in the same footing as All claims for money against the decedent, arising from contract, express or
implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent although the
validity of the money claim covered by a judgment against the decedent which has already become final and executory can no longer be litigated in the court
where administration proceedings for the settlement of the properties of the deceased are still pending, unlike the other money claims whose validity may yet be
challenged by the executor or administrator.
- In the case of Aldamiz vs. Judge of the Court of First Instance of Mindoro, it was already held that the writ of execution was not the proper procedure for the
payment of debts and expenses of the administration. The proper procedure is for the court to order the administratrix to make the payment; and if there is no
sufficient cash on hand, to order the sale of the properties and out of the proceeds to pay the debts and expenses of the administration. Domingo vs. Garlitos had
the same ruling with respect to the payment of
- The legal basis for such a procedure is the fact that in the testate or intestate proceedings to settle the estate of a deceased person, the properties belonging to
the estate are under the jurisdiction of the court and such jurisdiction continues until said properties have been distributed among the heirs entitled thereto.
During the pendency of the proceedings all the estate is in custodia legis and the proper procedure is not to allow the sheriff, in the case of court judgment, to
seize the properties but to ask the court for an order to require the administrator to pay the amount due from the estate and required to be paid (Domingo vs.

Order of CFI AFFIRMED and the petition for certiorari is DISMISSED, "without prejudice to the filing of the judgment in favor of Paredes as a claim in the
proceedings for the settlement of the estate of Kuntze.