SPECPRO

PRELIMINARIES
Define Action
Define Special Proceeding
Action v. Special Proceeding
Cases:
1) Hagans v. Wislezenus, 42 Phil 880 (1920)
There is a marked distinction between an "action" and a "special proceeding. "An
action is a formal demand of one's legal rights in a court of justice in the manner
prescribed by the court or by the law. It is the method of applying legal remedies
according to definite established rules. (People vs. County Judge, 13 How. Pr. [N. Y.],
398.) The term "special proceeding" may be defined as an application or proceeding
to establish the status or right of a party, or a particular fact. (Porter vs. Purdy, 29 N.
Y., 106, 110; Chapin vs. Thompson, 20 Cal., 681.) Usually, in special proceedings, no
formal pleadings are required, unless the statute expressly so provides. The remedy
in special proceedings is generally granted upon an application or motion.
Illustrations of special proceedings, in contradistinction to actions, may be given:
Proceedings for the appointment of an administrator, guardians, tutors; contest of
wills; to perpetuate testimony; to change the name of persons; application for
admission to the bar, etc., etc.
2) Natcher v. Court of Appeals, 366 SCRA 386 (2001)
As could be gleaned from the foregoing, there lies a marked distinction between an
action and a special proceeding. An action is a formal demand of one's right in a
court of justice in the manner prescribed by the court or by the law. It is the method
of applying legal remedies according to definite established rules. The term "special
proceeding" may be defined as an application or proceeding to establish the status
or right of a party, or a particular fact. Usually, in special proceedings, no formal
pleadings are required unless the statute expressly so provides. In special
proceedings, the remedy is granted generally upon an application or motion."9

Citing American Jurisprudence, a noted authority in Remedial Law expounds further:

"It may accordingly be stated generally that actions include those proceedings
which are instituted and prosecuted according to the ordinary rules and provisions
relating to actions at law or suits in equity, and that special proceedings include
those proceedings which are not ordinary in this sense, but is instituted and
prosecuted according to some special mode as in the case of proceedings
commenced without summons and prosecuted without regular pleadings, which are
characteristics of ordinary actions. XXX A special proceeding must therefore be in

the nature of a distinct and independent proceeding for particular relief, such as
may be instituted independently of a pending action, by petition or motion upon
notice."10

Applying these principles, an action for reconveyance and annulment of title with
damages is a civil action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the decedent, partake
of the nature of a special proceeding, which concomitantly requires the application
of specific rules as provided for in the Rules of Court.

Clearly, matters which involve settlement and distribution of the estate of the
decedent fall within the exclusive province of the probate court in the exercise of its
limited jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement

made or alleged to have been made by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate proceedings; and the final
order of the court thereon shall be binding on the person raising the questions and
on the heir.

While it may be true that the Rules used the word "may", it is nevertheless clear
that the same provision11 contemplates a probate court when it speaks of the
"court having jurisdiction of the estate proceedings".

Corollarily, the Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and resolve the issue of
advancement of the real property in favor of herein petitioner Natcher, inasmuch as
Civil Case No. 471075 for reconveyance and annulment of title with damages is not,
to our mind, the proper vehicle to thresh out said question. Moreover, under the
present circumstances, the RTC of Manila, Branch 55 was not properly constituted
as a probate court so as to validly pass upon the question of advancement made by
the decedent Graciano Del Rosario to his wife, herein petitioner Natcher.

At this point, the appellate court's disquisition is elucidating:

"Before a court can make a partition and distribution of the estate of a deceased, it
must first settle the estate in a special proceeding instituted for the purpose. In the
case at hand, the court a quo determined the respective legitimes of the plaintiffsappellants and assigned the subject property owned by the estate of the deceased
to defendant-appellee without observing the proper proceedings provided (for) by

the Rules of Court. From the aforecited discussions, it is clear that trial courts trying
an ordinary action cannot resolve to perform acts pertaining to a special proceeding
because it is subject to specific prescribed rules. Thus, the court a quo erred in
regarding the subject property as an advance inheritance."12

In resolving the case at bench, this Court is not unaware of our pronouncement in
Coca vs. Borromeo13 and Mendoza vs. Teh14 that whether a particular matter
should be resolved by the Regional Trial Court (then Court of First Instance) in the
exercise of its general jurisdiction or its limited probate jurisdiction is not a
jurisdictional issue but a mere question of procedure. In essence, it is procedural
question involving a mode of practice "which may be waived".15
3) Vda. De Manalo v. Court of Appeals, 349 SCRA 135 (2001) 366 SCRA 752 (2001)
Herein petitioners may not validly take refuge under the provisions of Rule 1,
Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil
Code of the Philippines for the dismissal of the petition for settlement of the estate
of the deceased Troadio Manalo inasmuch as the latter provision is clear enough, to
wit:
Art. 222. No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made,
but that the same have failed, subject to the limitations in Article 2035
(underscoring supplied).[22]
The above-quoted provision of the law is applicable only to ordinary civil
actions. This is clear from the term suit that it refers to an action by one person or
persons against another or others in a court of justice in which the plaintiff pursues
the remedy which the law affords him for the redress of an injury or the
enforcement of a right, whether at law or in equity. [23] A civil action is thus an action
filed in a court of justice, whereby a party sues another for the enforcement of a
right, or the prevention or redress of a wrong. [24] Besides, an excerpt from the
Report of the Code Commission unmistakably reveals the intention of the Code
Commission to make that legal provision applicable only to civil actions which are
essentially adversarial and involve members of the same family, thus:
xx
It must be emphasized that the oppositors (herein petitioners) are not being sued in
SP. PROC. No. 92-63626 for any cause of action as in fact no defendant was
impleaded therein. The Petition for Issuance of Letters of Administration, Settlement
and Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as
such, it is a remedy whereby the petitioners therein seek to establish a status, a
right, or a particular fact.[26] The petitioners therein (private respondents herein)
merely seek to establish the fact of death of their father and subsequently to be
duly recognized as among the heirs of the said deceased so that they can validly
exercise their right to participate in the settlement and liquidation of the estate of

the decedent consistent with the limited and special jurisdiction of the probate
court.
JURISDICTION
Extent of Jurisdiction BP 129, as amended
Cases:
1) Mangaliman v. Gonzales, 36 SCRA 462 (1970)
The only question to be resolved in this appeal is, whether or not the Court of First
Instance of Manila, as a probate court, has jurisdiction to entertain petitioner's
petition for reconveyance.

We hold that the probate court has no jurisdiction to take cognizance of the petition
for reconveyance, in question. The remedy sought by petitioner for the
reconveyance to her of her share in the Hacienda Evangelista upon the ground that
the same was acquired by respondent through fraud or misrepresentation cannot be
obtained by a mere petition in the probate proceedings. The court of first instance,
acting as a probate court, has limited jurisdiction and can take cognizance only of
"matters of probate, both testate and intestate estates, ... and all such special cases
and proceedings as are not otherwise provided for " 2 The jurisdiction of a probate
court is limited and special, and this should be understood to comprehend only
cases related to those powers specified in the law, and can not extend to the
adjucation of collateral matters.

The petition filed by petitioner before the probate court which seemingly seeks
merely the reconveyance to her of her undivided share in a parcel of land which
originally formed part of the estate of her father in fact calls for the nullification, of
the order of execution issued by the probate court which is already final, and of the
subsequent sale of a property to respondent, upon the alleged ground of fraud. The
defense interposed by respondent is that petitioner's action to recover the property
is already barred by prescription, laches, and res judicata. The petition for
reconveyance has given rise to a controversy involving rights over a real property
which would require the presentation of evidence and the determination of legal
questions that should be ventilated in a court of general jurisdiction.
2) Baybayan v. Aquino, 149 SCRA 185 (1987)
It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long fine of
decisions, that "when questions arise as to ownership of property alleged to be a
part of the estate of a deceased person, but claimed by some other person to be his
property, not by virtue of any right of inheritance from the deceased, but by title
adverse to that of the deceased and his estate, such questions cannot be
determined in the courts of administrative proceedings. The Court of First Instance,
acting, as a probate court, has no jurisdiction to adjudicate such contentions, which

must be submitted to the Court of First Instance in the exercise of its general
jurisdiction as a court of first instance." 163) Fernandez v. Maravilla, 10 SCRA 589
(1964)
4) Manalo v. Paredes, 47 Phil 938 (1925)
The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265),
and the court acquires jurisdiction over all the persons interested through the
publication of the notice prescribed by section 630 of the Code of Civil Procedure,
and any order that may be entered is binding against all of them. Through the
publication ordered by the Court of First Instance of Laguna of the application for
the probate of the supposed will of Francisco Villegas, filed by Justina Mendieta and
her minor children Lazaro and Daria Mendieta and Melecio Fule, testamentary
executor, through their attorney, Mr. Eusebio Lopez, said court acquired jurisdiction
over all such persons as were interested in the supposed will, including Gelacio
Malihan
RULE 72 - SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
Relate to other provisions of the ROC
Case:
1) Fernandez v. Maravilla, supra
RULE 73 VENUE AND PROCESS
Steps to determine which court has jurisdiction
When does the court acquire jurisdiction?
Settlement of estate upon dissolution of marriage
Presumption of Death - Article 390 to 392 of the CC
Cases:
1) Salazar v. CFI of Laguna, 64 Phil 78 (1937)
Under the foregoing provisions, a Court of First Instance acquires jurisdiction to
probate a will when it is shown by evidence before it: (1) That a person has died
leaving a will; (2) in the case of a resident of this country, that he died in the
province where the court exercises territorial jurisdiction; (3) in the case of a
nonresident, that he has left a estate in the province where the court is situated,
and (4) that the testament or last will of the deceased has been delivered to the
court and is in the possession thereof.
The law is silent as to the specific manner of bringing the jurisdictional allegations
before the court but practice and jurisprudence have established that they should
be made in the form of an application and filed with the original of the will attached
thereto. It has been the practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to producing the original
thereof at the hearing or when the court so requires. This precaution has been

adapted by some attorneys to forestall its disappearance, which has taken place in
certain cases.
According to the facts alleged and admitted by the parties, it is evident that the
court has acquired jurisdiction to probate the second will, in view of the presence of
all the jurisdictional facts above-stated. The respondent's counter-petition should, in
this case, be considered as a petition for the probate of the second will, the original
of which was filed by her on July 20, 1937.
II. The payment of the fees of the clerk of court for all services to be rendered by
him in connection with the probate of the second will and for the successive
proceedings to be conducted and others to be issued, in accordance with section
788, as amended, is not jurisdiction in the sense that its omission does not deprive
the court of its authority to proceed with the probate of a will, as expressly provided
for by section 630. It is the inevitable duty of the court, when a will is presented to
it, to appoint hearing for its allowance and to cause notice thereof to be given by
publication. The duty imposed by said section is imperative and noncompliance
therewith would be a mockery at the law and at last will of the testator. Section 785
(a) of the Code of Civil Procedure, as amended recently by Act No. 3250, permits the
remission or postponement of the payment of the clerk's fees in cases of poverty, at
the discretion of the court, and if this were done in one case and the payment of the
fees for filing the application were jurisdictional, is claimed, then the court, in
admitting the will to probate and in allowing it, would have acted entirely without
jurisdiction. Finally, it should be taken into consideration that the court, in this case,
did not exempt the respondents from paying the fees in question but merely failed
to make provision therefor.
III. When the court ordered that the second will be set for hearing that publication
be made thereof and that said will be heard in the same proceeding jointly with the
first will, it merely ordered the consolidation of the two applications and the two
hearing on the probate of both wills, instead of conducting separate hearing,
undoubtedly because it understood that the form so chosen was the most
convenient for the parties and their attorneys.
There are three ways of consolidation action or special proceedings where the
questions at issue and the parties in interest are the same. The first consists in
recasting the cases already instituted, conducting only one hearing and rendering
only one decision; the second takes place when the existing cases are consolidated,
only one hearing held and only one decision rendered; and the third takes place
when, without recasting or consolidating the cases, the principal one is heard, the
hearing on the others being suspended until judgment has been rendered in the
first case. The court, in the exercise of its sound discretion, may adopt any of these
three forms of consolidation whenever in its opinion the proceeding is beneficial to
and convenient for the parties. The power so exercised is discretionary. In the case
under consideration, the court acquired jurisdiction from the moment the counterpetition was presented and the second will came to its possession and under its
control and, consequently, it likewise had full discretion to order, as it did, the
probate thereof in the proceeding already instituted for the purpose of rendering

later only one decision. It should furthermore be taken into consideration that the
consolidation so ordered was the form most convenient for and beneficial to the
parties as well as to the court because if the first will were opposed on the ground
that it was revoked by the second will, the best evidence of the revocation would be
said second will and once the publications are made, if the second will was executed
with the formalities prescribed by law, the court could order the probate thereof,
without the necessity of multiplying the proceedings.

2) Cayetano v. Leonidas, 129 SCRA 522 (1984)

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved
in our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with
the Court of First Instance of Manila where she had an estate since it was alleged
and proven that Adoracion at the time of her death was a citizen and permanent
resident of Pennsylvania, United States of America and not a "usual resident of
Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the petition for relief. It is a
settled rule that a party cannot invoke the jurisdiction of a court to secure
affirmative relief, against his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction
3) In re Kaw Singco, 74 Phil 239 (1943)
We are not unaware of existing decisions to the effect that in probate cases the
place of residence of the deceased is regarded as a question of jurisdiction over the
subject-matter. But we declined to follow this view because of its mischievous
consequences. For instance, a probate case has been submitted in good faith to a
Court of First Instance of a province whether the deceased had not resided. All the
parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a
claim of a creditor who also voluntarily filed it with said court but on appeal from an
adverse decision raises for the first time in this Court the question of jurisdiction of
the trial court for lack of the residence of the deceased in the province. If we
consider such question of residence as one affecting the jurisdiction of the trial
court over the subject-matter, the effect shall be that the whole proceedings
including all decisions on the different incidents which have arisen in court will have

to be annulled and the same case will have to be commenced anew before another
court of the same rank in another province. That this ministration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206,
December 31, 1942.) Furthermore, section 600 of Act. No. 190, providing that the
estate of a deceased person shall be settled in the province whether he had last
resided could not have been intended as defining the jurisdiction of the probate
court over the subject-matter, because such legal provision is contained in law of
procedure dealing merely with procedural matters, and, as we have said time and
again, procedure is one thing and jurisdiction over the subject-matter is another.
(Attorney-General vs. Manila Railroad Company, 20 Phil., 523.) The law of
jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the
deceased. Since, however, there are many courts of First Instance in the Philippines,
the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where
each case shall be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction of venue. And it is upon this ground that in the new Rules of
Court the province where the estate of a deceased person shall be settled is
properly called "venue.
4) Garcia Fule v. Court of Appeals, 74 SCRA 189 (1976)
1.
Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is
an inhabitant of the Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in which he resides at the time
of his death, and if he is an inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from that court,
in the original case, or when the want of jurisdiction appears on the record." With
particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules
of Court demands that the petition therefor should affirmatively show the existence
of jurisdiction to make the appointment sought, and should allege all the necessary
facts, such as death, the name and last residence of the decedent, the existence,
and situs if need be, of assets, intestacy, where this is relied upon, and the right of
the person who seeks administration, as next of kin, creditor, or otherwise, to be
appointed. The fact of death of the intestate and his last residence within the
country are foundation facts upon which all subsequent proceedings in the
administration of the estate rest, and that if the intestate was not an inhabitant of
the state at the time of his death, and left no assets in the state, no jurisdiction is
conferred on the court to grant letters of administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the
location of the estate," is in reality a matter of venue, as the caption of the Rule
indicates: "Settlement of Estate of Deceased Persons. Venue and Processes. 4 It

could not have been intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed and
was fixed before procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in which the
power or authority shall be fully and justly exercised. There are cases though that if
the power is not exercised conformably with the provisions of the procedural law,
purely, the court attempting to exercise it loses the power to exercise it legally.
However, this does not amount to a loss of jurisdiction over the subject matter.
Rather, it means that the court may thereby lose jurisdiction over the person or that
the judgment may thereby be rendered defective for lack of something essential to
sustain it. The appearance of this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the jurisdiction of the court over
the subject matter. In plain words, it is just a matter of method, of convenience to
the parties. 5
The Judiciary Act of 1948, as amended, confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the
deceased. Because of the existence of numerous Courts of First Instance in the
country, the Rules of Court, however, purposedly fixes the venue or the place where
each case shall be brought. A fortiori, the place of residence of the deceased in
settlement of estates, probate of will, and issuance of letters of administration does
not constitute an element of jurisdiction over the subject matter. It is merely
constitutive of venue. And it is upon this reason that the Revised Rules of Court
properly considers the province where the estate of a deceased person shall be
settled as "venue." 6
2.
But, the far-ranging question is this: What does the term "resides" mean?
Does it refer to the actual residence or domicile of the decedent at the time of his
death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini
"actual residence" as distinguished from "legal residence or domicile." This term
"resides," like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is
employed. 7 In the application of venue statutes and rules Section 1, Rule 73 of
the Revised Rules of Court is of such nature residence rather than domicile is the
significant factor. Even where the statute uses the word "domicile" still it is
construed as meaning residence and not domicile in the technical sense. Some
cases make a distinction between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are synonymous, and convey the
same meaning as the term "inhabitant." 8 In other words, "resides" should be
viewed or understood in its popular sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular sense, the term means
merely residence, that is, personal residence, not legal residence or domicile. 9
Residence simply requires bodily presence as an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to make it

one's domicile. 10 No particular length of time of residence is required though;

however, the residence must be more than temporary. 11
3.
Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on
the residence of the deceased Amado G. Garcia at the time of his death. In her
original petition for letters of administration before the Court of First Instance of
Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado
G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in other places
within the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the
petition for failure to satisfy the jurisdictional requirement and improper laying of
venue. For her, the quoted statement avers no domicile or residence of the
deceased Amado G. Garcia. To say that as "property owner of Calamba, Laguna," he
also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary,
Preciosa B. Garcia claims that, as appearing in his death certificate presented by
Virginia G. Fule herself before the Calamba court and in other papers, the last
residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel Subdivision,
Quezon City. Parenthetically, in her amended petition, Virginia G. Fule categorically
alleged that Amado G. Garcia's "last place of residence was at Calamba, Laguna."
On this issue, We rule that the last place of residence of the deceased Amado G.
Garcia was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at
Calamba, Laguna. A death certificate is admissible to prove the residence of the
decedent at the time of his death. 12 As it is, the death certificate of Amado G.
Garcia, which was presented in evidence by Virginia G. Fule herself and also by
Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue,
Carmel Subdivision, Quezon City. Aside from this, the deceased's residence
certificate for 1973 obtained three months before his death; the Marketing
Agreement and Power of Attorney dated November 12, 1971 turning over the
administration of his two parcels of sugar land to the Calamba Sugar Planters
Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8,
1973, transferring part of his interest in certain parcels of land in Calamba, Laguna
to Agustina B. Garcia; and certificates of titles covering parcels of land in Calamba,
Laguna, show in bold documents that Amado G. Garcia's last place of residence was
at Quezon City. Withal, the conclusion becomes imperative that the venue for
Virginia C. Fule's petition for letters of administration was improperly laid in the
Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is
that objection to improper venue is subject to waiver. Section 4, Rule 4 of the
Revised Rules of Court states: "When improper venue is not objected to in a motion
to dismiss, it is deemed waived." In the case before Us the Court of Appeals had
reason to hold that in asking to substitute Virginia G. Fule as special administratrix,
Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or
venue assumed by the Court of First Instance of Calamba, Laguna, but availed of a
mere practical resort to alternative remedy to assert her rights as surviving spouse,
while insisting on the enforcement of the Rule fixing the proper venue of the
proceedings at the last residence of the decedent.
5) Cuenco v. Court of Appeals, 53 SCRA 360 (1973)

1.
The Judiciary Act 7 concededly confers original jurisdiction upon all Courts of
First Instance over "all matter of probate, both of testate and intestate estates." On
the other hand, Rule 73, section of the Rules of Court lays down the rule of venue,
as the very caption of the Rule indicates, and in order to prevent conflict among the
different courts which otherwise 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 courts."
The cited Rule provides:

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
the 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. (Rule 73) 8
It is equally conceded that the residence of the deceased or the location of his
estate is not an element of jurisdiction over the subject matter but merely of venue.
This was lucidly stated by the late Chief Justice Moran in Sy Oa vs. Co Ho 9 as
follows:
We are not unaware of existing decisions to the effect that in probate cases the
place of residence of the deceased is regarded as a question of jurisdiction over the
subject-matter. But we decline to follow this view because of its mischievous
consequences. For instance, a probate case has been submitted in good faith to the
Court of First Instance of a province where the deceased had not resided. All the
parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a
claim of a creditor who also voluntarily filed it with said court but on appeal from an
adverse decision raises for the first time in this Court the question of jurisdiction of
the trial court for lack of residence of the deceased in the province. If we consider
such question of residence as one affecting the jurisdiction of the trial court over the
subject-matter, the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be annulled and
the same case will have to be commenced anew before another court of the same
rank in another province. That this is of mischievous effect in the prompt
administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy
Buncio & Co., G.R. No. 48206, December 31, 1942) Furthermore, section 600 of Act
No. 190, 10 providing that the estate of a deceased person shall be settled in the
province where he had last resided, could not have been intended as defining the
jurisdiction of the probate court over the subject-matter, because such legal

provision is contained in a law of procedure dealing merely with procedural matters,

and, as we have said time and again, procedure is one thing and jurisdiction over
the subject matter is another. (Attorney-General vs. Manila Railroad Company, 20
Phil. 523.) The law of jurisdiction Act No. 136, 11 Section 56, No. 5 confers
upon Courts of First Instance jurisdiction over all probate cases independently of the
place of residence of the deceased. Since, however, there are many courts of First
Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the
venue or the place where each case shall be brought. Thus, the place of residence
of the deceased is not an element of jurisdiction over the subject-matter but merely
of venue. And it is upon this ground that in the new Rules of Court the province
where the estate of a deceased person shall be settled is properly called "venue".
It should be noted that the Rule on venue does not state that the court with whom
the estate or intestate petition is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance
of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts."
A fair reading of the Rule since it deals with venue and comity between courts of
equal and co-ordinate jurisdiction indicates that the court with whom the petition
is first filed, must also first take cognizance of the settlement of the estate in order
to exercise jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the
decedent's last will has been presented in another court where the decedent
obviously had his conjugal domicile and resided with his surviving widow and their
minor children, and that the allegation of the intestate petition before it stating that
the decedent died intestate may be actually false, may decline to take cognizance
of the petition and hold the petition before it in abeyance, and instead defer to the
second court which has before it the petition for probate of the decedent's alleged
last will.
2.
This exactly what the Cebu court did. Upon petitioner-widow's filing with it a
motion to dismiss Lourdes' intestate petition, it issued its order holding in abeyance
its action on the dismissal motion and deferred to the Quezon City court, awaiting
its action on the petition for probate before that court. Implicit in the Cebu court's
order was that if the will was duly admitted to probate, by the Quezon City court,
then it would definitely decline to take cognizance of Lourdes' intestate petition
which would thereby be shown to be false and improper, and leave the exercise of
jurisdiction to the Quezon City court, to the exclusion of all other courts. Likewise by
its act of deference, the Cebu court left it to the Quezon City court to resolve the
question between the parties whether the decedent's residence at the time of his
death was in Quezon City where he had his conjugal domicile rather than in Cebu
City as claimed by respondents. The Cebu court thus indicated that it would decline
to take cognizance of the intestate petition before it and instead defer to the
Quezon City court, unless the latter would make a negative finding as to the probate
petition and the residence of the decedent within its territory and venue.

3.
Under these facts, the Cebu court could not be held to have acted without
jurisdiction or with grave abuse of jurisdiction in declining to take cognizance of the
intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition since under
Rule 73, section 1, the Cebu court must first take cognizance over the estate of the
decedent and must exercise jurisdiction to exclude all other courts, which the Cebu
court declined to do. Furthermore, as is undisputed, said rule only lays down a rule
of venue and the Quezon City court indisputably had at least equal and coordinate
jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and
assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the same rule of venue of said
Rule 73, to exercise jurisdiction to the exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City
court their opposition to probate of the will, but failed to appear at the scheduled
hearing despite due notice, the Quezon City court cannot be declared, as the
appellate court did, to have acted without jurisdiction in admitting to probate the
decedent's will and appointing petitioner-widow as executrix thereof in accordance
with the testator's testamentary disposition
4.
The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority against
respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings
over intestate proceedings in this wise:
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 that the decedent
had left a last will, proceedings for the probate of the latter should replace the
intestate proceedings even if at that state 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. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case,
the Quezon City court) although opining that certain considerations therein "would
seem to support the view that [therein respondent] should have submitted said will
for probate to the Negros Court, [in this case, the Cebu court] either in a separate
special proceeding or in an appropriate motion for said purpose filed in the already
pending Special Proceeding No. 6344," 15 thus:
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 waivable 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. 16
5.
Under Rule 73, section 1 itself, the Quezon City court's assumption of
jurisdiction over the decedent's estate on the basis of the will duly presented for
probate by petitioner-widow and finding that Quezon City was the first choice of
residence of the decedent, who had his conjugal home and domicile therein with
the deference in comity duly given by the Cebu court could not be contested
except by appeal from said court in the original case. The last paragraph of said
Rule expressly provides:
... 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. (Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on the
record" could probably be properly invoked, had such deference in comity of the
Cebu court to the Quezon City court not appeared in the record, or had the record
otherwise shown that the Cebu court had taken cognizance of the petition before it
and assumed jurisdiction.
6.
On the question that Quezon City established to be the residence of the late
senator, the appellate court while recognizing that "the issue is a legitimate one"
held in reliance on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of whichever court is
considered to prevail in the exercise jurisdiction - in this case, the Court of First
Instance of Cebu as held by this Court. Parenthetically, we note that the question of
the residence of the deceased is a serious one, requiring both factual and legal
resolution on the basis of ample evidence to be submitted in the ordinary course of
procedure in the first instance, particularly in view of the fact that the deceased was
better known as the Senator from Cebu and the will purporting to be his also gives
Cebu, besides Quezon City, as his residence. We reiterate that this matter requires
airing in the proper court, as so indicated in the leading and controlling case of
Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of the
intestate petition first filed with it and deferred to the testate proceedings filed with
the Quezon City court and in effect asked the Quezon City court to determine the
residence of the decedent and whether he did leave a last will and testament upon
which would depend the proper venue of the estate proceedings, Cebu or Quezon
City. The Quezon City court having thus determined in effect for both courts at
the behest and with the deference and consent of the Cebu court that Quezon
City was the actual residence of the decedent who died testate and therefore the
proper venue, the Borja ruling would seem to have no applicability. It would not
serve the practical ends of justice to still require the Cebu court, if the Borja ruling is
to be held applicable and as indicated in the decision under review, to determine for
itself the actual residence of the decedent (when the Quezon City court had already
so determined Quezon City as the actual residence at the Cebu court's behest and
respondents have not seriously questioned this factual finding based on
documentary evidence) and if the Cebu court should likewise determine Quezon
City as the actual residence, or its contrary finding reversed on appeal, only then to
allow petitioner-widow after years of waiting and inaction to institute the
corresponding proceedings in Quezon City.
7.
With more reason should the Quezon City proceedings be upheld when it is
taken into consideration that Rule 76, section 2 requires that the petition for
allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional
facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo 18 "
are the death of the decedent, his residence at the time of his death in the province

where the probate court is sitting, or if he is an inhabitant of a foreign country, his

having left his estate in such province."
This tallies with the established legal concept as restated by Moran that "(T)he
probate of a will is a proceeding in rem. The notice by publication as a pre-requisite
to the allowance of a will, is a constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon everybody, even
against the State. The probate of a will by a court having jurisdiction thereof is
conclusive as to its due execution and validity." 19 The Quezon City court acted
regularly within its jurisdiction (even if it were to be conceded that Quezon City was
not the proper venue notwithstanding the Cebu court's giving way and deferring to
it,) in admitting the decedent's last will to probate and naming petitioner-widow as
executrix thereof. Hence, the Quezon city court's action should not be set aside by a
writ of prohibition for supposed lack of jurisdiction as per the appellate court's
appealed decision, and should instead be sustained in line with Uriarte, supra,
where the Court, in dismissing the certiorari petition challenging the Manila court's
action admitting the decedent's will to probate and distributing the estate in
accordance therewith in the second proceeding, held that "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." As
stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the
administration of justice" of considering the question of residence as affecting the
jurisdiction of the trial court and annulling the whole proceedings only to start all
over again the same proceedings before another court of the same rank in another
province "is too obvious to require comment."
8.
If the question of jurisdiction were to be made to depend only on who of the
decedent's relatives gets first to file a petition for settlement of the decedent's
estate, then the established jurisprudence of the Court that Rule 73, section 1
provides only a rule of venue in order to preclude different courts which may
properly assume jurisdiction from doing so and creating conflicts between them to
the detriment of the administration of justice, and that venue is waivable, would be
set at naught. As between relatives who unfortunately do not see eye to eye, it
would be converted into a race as to who can file the petition faster in the court of
his/her choice regardless of whether the decedent is still in cuerpo presente and in
disregard of the decedent's actual last domicile, the fact that he left a last will and
testament and the right of his surviving widow named as executrix thereof. Such
dire consequences were certainly not intended by the Rule nor would they be in
consonance with public policy and the orderly administration of justice.
9.
It would finally be unjust and inequitable that petitioner-widow, who under all
the applicable rules of venue, and despite the fact that the Cebu court (where
respondent Lourdes Cuenco had filed an intestate petition in the Cebu court earlier
by a week's time on 5 March 1964) deferred to the Quezon City court where
petitioner had within fifteen days (on March 12, 1964) after the decedent's death
(on February 25, 1964) timely filed the decedent's last will and petitioned for letters
testamentary and is admittedly entitled to preference in the administration of her

husband's estate, 20 would be compelled under the appealed decision to have to go

all the way to Cebu and submit anew the decedent's will there for probate either in
a new proceeding or by asking that the intestate proceedings be converted into a
testate proceeding when under the Rules, the proper venue for the testate
proceedings, as per the facts of record and as already affirmed by the Quezon City
court is Quezon City, where the decedent and petitioner-widow had their conjugal
domicile.
It would be an unfair imposition upon petitioner as the one named and entitled to be
executrix of the decedent's last will and settle his estate in accordance therewith,
and a disregard of her rights under the rule on venue and the law on jurisdiction to
require her to spend much more time, money and effort to have to go from Quezon
City to the Cebu court everytime she has an important matter of the estate to take
up with the probate court.
It would doubly be an unfair imposition when it is considered that under Rule 73,
section 2, 21 since petitioner's marriage has been dissolved with the death of her
husband, their community property and conjugal estate have to be administered
and liquidated in the estate proceedings of the deceased spouse. Under the
appealed decision, notwithstanding that petitioner resides in Quezon City, and the
proper venue of the testate proceeding was in Quezon City and the Quezon City
court properly took cognizance and exercised exclusive jurisdiction with the
deference in comity and consent of the Cebu court, such proper exercise of
jurisdiction would be nullified and petitioner would have to continually leave her
residence in Quezon City and go to Cebu to settle and liquidate even her own
community property and conjugal estate with the decedent.
10.
The Court therefore holds under the facts of record that the Cebu court did
not act without jurisdiction nor with grave abuse of discretion in declining to take
cognizance of the intestate petition and instead deferring to the testate proceedings
filed just a week later by petitioner as surviving widow and designated executrix of
the decedent's last will, since the record before it (the petitioner's opposition and
motion to dismiss) showed the falsity of the allegation in the intestate petition that
the decedent had died without a will. It is noteworthy that respondents never
challenged by certiorari or prohibition proceedings the Cebu court's order of 10 April
1964 deferring to the probate proceedings before the Quezon City court, thus
leaving the latter free (pursuant to the Cebu court's order of deference) to exercise
jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be held to have acted
without jurisdiction nor with grave abuse of discretion in admitting the decedent's
will to probate and appointing petitioner as executrix in accordance with its
testamentary disposition, in the light of the settled doctrine that the provisions of
Rule 73, section 1 lay down only a rule of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the Quezon City court's order
of May 15, 1964 admitting the will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue said order, the said order

of probate has long since become final and can not be overturned in a special civic
action of prohibition.
11.
Finally, it should be noted that in the Supreme Court's exercise of its
supervisory authority over all inferior courts, 22 it may properly determine, as it has
done in the case at bar, that venue was properly assumed by and transferred to the
Quezon City court and that it is the interest of justice and in avoidance of needless
delay that the Quezon City court's exercise of jurisdiction over the testate estate of
the decedent (with the due deference and consent of the Cebu court) and its
admission to probate of his last will and testament and appointment of petitionerwidow as administratrix without bond in pursuance of the decedent's express will
and all its orders and actions taken in the testate proceedings before it be approved
and authorized rather than to annul all such proceedings regularly had and to
repeat and duplicate the same proceedings before the Cebu court only to revert
once more to the Quezon City court should the Cebu court find that indeed and in
fact, as already determined by the Quezon City court on the strength of
incontrovertible documentary evidence of record, Quezon City was the conjugal
residence of the decedent.
6) Ongsingco v. Tan, 97 Phil 330 (1955)
t is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of
decisions that, "the question of ownership of property is one which should be
determined in an ordinary action and not in probate proceedings, and this whether
or not the property is alleged to belong to the estate" (Franco vs. O'Brien, 13 Phil.,
359). In another case, it was held that "The general rule is that questions as to title
to property cannot be passed upon in testate or intestate proceedings"
(Pascual vs. Pascual, 73 Phil., 561, 562; See also Cordova Vda. de
Maalac vs. Ocampo, 73 Phil., 661, 662), or stating the rule more elaborately,
"When questions arise as to the ownership of property alleged to be a part of the
estate of a deceased person, but claimed by some other person to be his property,
not by virtue of any right of inheritance from the deceased, but by title adverse to
that of the deceased and his estate, such questions cannot be determined in the
courts of administrative proceedings. The Court of First Instance, acting as a
probate court, has no jurisdiction to adjudicate such contentions, which must be
submitted to the court in the exercise of its general jurisdiction as a court of first
instance . . .."
6) Eusebio v. Eusebio, 100 Phil 593 (1956)
It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and
had always been, domiciled in San Fernando, Pampanga, where he had his home, as
well as some other properties. Inasmuch as his heart was in bad condition and his
son, Dr. Jesus Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon
City, on October 29, 1952, Andres Eusebio bought a house and lot at 889-A Espaa
Extention, in said City (Exhibit 2). While transferring his belongings to this house,
soon thereafter, the decedent suffered a stroke (probably heart failure), for which
reason Dr. Eusebio took him to his (Dr. Eusebio's) aforementioned residence, where
the decedent remained until he was brought to the UST Hospital, in the City of

Manila, sometimes before November 26, 1952. On this date, he contracted marriage
in articulo mortis with his common law wife, Concepcion Villanueva, in said hospital.
Two (2) days later, he died therein of "acute left ventricular failure secondary to
hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A).
Consequently, he never stayed or even slept in said house at Espaa Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was
San Fernando, Pampanga, where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and, hence, residence, in the
absence of satisfactory proof to the contrary, for it is well-settled that "a domicile
once acquired is retained until a new domicile is gained" (Minor, Conflict of Laws,
p.70; Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192
Iowa, 78). Under the circumstances surrounding the case at bar, if Andres Eusebio
established another domicile, it must have been one of choice, for which the
following conditions are essential, namely: (1) capacity to choose and freedom of
choice; (2) physical presence at the place chosen; and (3) intention to stay therein
permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p.
169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off.
Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of
choosing a domicile and had been in Quezon City several days prior to his demise.
Thus, the issue narrows down to whether he intended to stay in that place
permanently.

There is no direct evidence of such intent. Neither does the decedent appears to
have manifested his wish to live indefinitely in said city. His son, petitioner-appellee,
who took the witness stand, did not testify thereon, despite the allegation, in his
answer to the aforemention, opposition of the appellants herein, that "the deceased
(had) decided to reside . . . for the rest of his life, in Quezon City". Moreover, said
appellee did not introduce the testimony of his legitimate full brother and son of the
decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at
No. 889-A Espaa Extention was purchased, and who, therefore, might have cast
some light on his (decedent's) purpose in buying said property. This
notwithstanding, the lower court held that the decedent's intent to stay
permanently in Quezon City is "manifest" from the acquisition of said property and
the transfer of his belonging thereto. This conclusion is untenable.lawphil.net

The aforementioned house and lot were bought by the decedent because he had
been adviced to do so "due to his illness", in the very words of herein appellee. It is
not improbable in fact, its is very likely that said advice was given and followed
in order that the patient could be near his doctor and have a more effective
treatment. It is well settled that "domicile is not commonly changed by presence in
a place merely for one's own health", even if coupled with "knowledge that one will
never again be able, on account of illness, to return home." (The Conflict of Laws, by

Beale, Vol. I, pp. 172-173; see, also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S.
vs. Knight, D. C. Mont., 291 Fed. 129).

Again, the decedent did not part with, or alienate, his house in San Fernando,
Pampanga. Moreover, some of his children, who used to live with him in San
Fernando, Pampanga, remained in that municipality. Then, again, in the deed Exhibit
2, by virtue of which said property at No. 889-A Espaa Extention, Quezon City, was
conveyed to him, on October 29, 1952, or less than a month before his death, the
decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B"
residence certificates used by the decedent in aknowledging said Exhibit 2, before a
notary public, was issued in San Fernando, Pampanga. Lastly, the marriage contract
Exhibit 1, signed by the deceased when he was married, in articulo mortis, to
Concepcion Villanueva, at the UST Hospital, on November 26, 1952, or two (2) days
prior to his demise, stated that his residence is San Fernando, Pampanga. It is
worthy of notice that Alfonso Eusebio, one of the legitimate full brothers of the
herein appellee, was a witness to said wedding, thus indicating that the children of
the deceased by his first marriage, including said appellee, were represented on
that occasion and would have objected to said statement about his residence, if it
were false. Consequently, apart from appellee's failure to prove satisfactory that the
decedent had decided to establish his home in Quezon City, the acts of the latter,
shortly and immediately before his death, prove the contrary. At any rate, the
presumption in favor of the retention of the old domicile 1 which is particularly
strong when the domicile is one of the origin 2as San Fernando, Pampanga,
evidently was, as regards said decedent has not been offset by the evidence of
record.
xxx
Appellee, however, asks: "What will happen if this case be dismissed in the Court of
First Instance of Quezon City on the ground of lack of jurisdiction or improper
venue?" In this connection, it appears that on November 14, 1953, the Clerk of the
Court of First Instance of Pampanga received a petition of appellants herein, dated
November 4, 1953, for the settlement of the "Intestate Estate of the late Don
Andres Eusebio". Attached to said petition was petition for the docketing thereof
free charge, pursuant to Rule 3, section 22, of the Rules of Court. The latter petition
was granted by an order dated November 16, 1953, which was received by the
cashier of said court on November 17, 1953, on which date the case was docketed
as Special Proceedings No. 957. On December 14, 1953, Jesus, Eugenio, Amando
and Alfonso, all surnamed Eusebio (the children of the decedent by first marriage,
including petitioner herein), moved for the dismissal of said proceedings, owing to
the pendency of the present case, before the Court of First Instance of Rizal, since
November 16, 1953. This motion was granted in an order dated December 21,
1953, relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to
which "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar.
Said order did not pass upon the question of domicile or residence of the decedent.
Moreover, in granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently refers to
cases triable before two or more courts with concurrent jurisdiction. It could not
possibly have intended to deprive a competent court of the authority vested therein
by law, merely because a similar case had been previously filed before a court to
which jurisdiction is denied by law, for the same would then be defeated by the will
of one of the parties. More specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in the Philippines, for the
settlement of their respective estates may undertaken before the court of first
instance of either one of said provinces, not only because said courts then have
concurrent jurisdiction and, hence, the one first taking cognizance of the case
shall exclude the other courts but, also, because the statement to this effect in
said section 1 of Rule 75 of the Rules of the Court immediately follows the last part
of the next preceding sentence, which deals with non-resident decedents, whose
estate may settled the court of first instance of any province in which they have
properties.lawphil.net
In view, however, of the last sentence of said section, providing that:
. . . The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in
a suit or proceedings, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.
if proceedings for the settlement of the estate of a deceased resident are instituted
in two or more courts, and the question of venue is raised before the same, the
court in which the first case was filed shall have exclusive jurisdiction to decide said
issue, and we so held in the case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27,
1955). Should it be decided, in the proceedings before the said court, that venue
had been improperly laid, the case pending therein should be dismissed and the
corresponding proceedings may, thereafter, be initiated in the proper court.
In conclusion, we find that the decedent was, at the time of his death, domiciled in
San Fernando, Pampanga; that the Court of First Instance of Rizal had no authority,
therefore, to appoint an administrator of the estate of the deceased, the venue
having been laid improperly; and that it should, accordingly, have sustained
appellants' opposition and dismissed appellee's petition.

8) Sandoval v. Santiago, 83 Phil 784 (1949)

Judge or Court of First Instance of Quezon Province, wherein the deceased was
residing at the time of his death, has acquired exclusive jurisdiction to settle the
testate estate of the deceased Daniel Marquez and over the heirs and other person
interested in the estate of the deceased from the moment the application for the
probate of the decedent's will was filed with the said court and the publication

required by law were made; and the heirs of the deceased Marquez could not divest
the Court of First Instance of its already acquired jurisdiction by the mere fact of
dividing extrajudicially the estate of the deceased among themselves.
If the extrajudicial partition made by the heirs of the deceased wassubmitted to the
court and approved by the respondent judge after verifying that it does not
prejudicially affect the rights of third parties, the testate proceedings pending in the
court would have been legally thereby terminated. An extrajudicial partition of the
estate of a deceased by the heirs becomes a judicial partition after its approval by
the court which had previously acquired jurisdiction of the estate by the filing of an
application for the probate of the decedent's will; but as the testate proceeding is
terminated in such case without the necessary publication ofnotices to creditors and
other persons interested in the estate required ina required in a regular judicial
administration, the effect of such judicial partition would be the same as if it had
been effected extrajudicially without the intervention of the court under the
provisions of section1,of Rule 74, that is, subject to the claims against the
distributees by persons mentioned in sections 4 and 5, of the same rule.
(McMicking vs. Sy Conbieng. 21 Phil., 211.)

9) Vda. De Manzanero v. CFI of Batangas, 61 Phil 850 (1935)

According to the above cited legal provision, the jurisdiction assumed by a Court of
First Instance, for the settlement of an estate, so far as it depends on the place of
residence of a person, or of the location of his estate, cannot 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.
From the pleadings before us, which are copies of their originals attached to the
record in the Court of First Instance of Batangas, the want of jurisdiction of said
court does not clearly appear. The communication of the municipal treasurer of
Tabaco, Albay, stating that the deceased Esteban M. Manzanero appears in the list
of registered voters, and the affidavit of the municipal president thereof stating that
the deceased resided before his death in Tabaco, Albay, do not form part of the
record of the lower court. It not appearing from the orders of the lower court, as
disclosed by the copies thereof attached to the record of
these certiorari proceedings, that said court lacks jurisdiction to take cognizance of
the application for summary settlement by reason of the legal residence of the
deceased, Esteban M. Manzanero, certiorari does not lie, an appeal being specially
provided in such case by section 603 of the Code of Civil Procedure.
As to the alleged irregularities, some involve a question of fact, as the absence of
publication of the hearing, and they cannot be the object of certiorari; and others,
as the taking of evidence before the clerk of court of Tayabas, while involving
questions of law which may affect the validity of the proceedings, it does not appear
that the lower court's attention has been called thereto by means of a motion to
reconsider its proceedings, without which requisitecertiorari does not lie, as held in

the case of the Municipal Council of Masantol vs. Guevara (44 Phil., 580);
andHerrera vs. Barretto and Joaquin (25 Phil., 245).
Furthermore, it appears of record that there is a motion in the special proceeding for
the summary settlement of the estate under consideration, praying that the heirs of
the deceased Esteban M. Manzanero, who received the latter's property, be ordered
to return it to the court for delivery to the herein petitioner, Remedios Bongon Viuda
de Manzanero, as the only alleged beneficiary named in the insurance policy of her
deceased husband. This motion is pending decision and is in accordance with the
reservation made by Judge Eduardo Gutierrez David in his order of April 23, 1935,
directing the distribution of the net proceeds of the insurance policy among the
brothers and sisters of the deceased, after payment of the only indebtedness of
P500. Said reservation is in accordance with the provision of section 598 of said
Code of Civil Procedure.
Under the law and under said order, the petitioner, therefore, has a plain, speedy
and adequate remedy for the enforcement of her rights, and consequently, this
petition for certiorari does not lie.
For the foregoing considerations, it is held that the petition for certiorari filed by the
petitioner Remedios Bongon Viuda de Manzanero does not lie and it is ordered
dismissed, with costs to the petitioner. So ordered.

10) Benedicto v. Javellana, 10 Phil 197 (1908)

11) Casiano v. Maloto, 70 SCRA 232 (1977)

12) Cuizon v. Ramolete, 129 SCRA 495 (1984)
13) Bernardo v. Court of Appeals, 7 SCRA 367 (1963)
14) Uriarte v. CFI of Negros Occidental, 33 SCRA 252 (1970)
15) Del Rosario v. Del Rosario, 67 Phil 652 (1939)
16) Dolar v. Roman Catholic, 68 Phil 727 (1939)
17) Alfonso v. Natividad, 6 Phil 240 (1906)
18) Cruz v. De Jesus, 52 Phil 870 (1929)
19) De la Rama v. De la Rama, 7 Phil 745 (1907)
20) Villacorte v. Mariano, 89 Phil 342 (1951)
21) Calma v. Tanedo, 66 Phil 594 (1938)
22) Ocampo v. Potenciano 89 Phil 160 (1951)
23) Prado v. Natividad, 47 Phil 776 (1925)

24) De la Rama v. De la Rama, 25 Phil 437 (1913)

25) Fulgencio v. Gatchalian, 21 Phil 252 (1912)
26) Lukban v. Republic, 98 Phil 574 (1956)

RULE 74 SUMMARY SETTLEMENT OF ESTATESyt

Different modes of intestate settlement
Requisites of a valid extrajudicial settlement
Nature of summary settlement
Requisites for a valid summary settlement of an estate of small value
Extrajudicial Settlement v. Summary Settlement
Cases:
1) Utulo v. Vda. De Garcia, 66 Phil 302 (1938)
2) Hernandez v. Andal, 78 Phil 196 (1947)
3) Torres v. Torres, 10 SCRA 185 (1964)
4) Arcillas v. Montejo, 26 SCRA 197 (1968)
5) Ermac v. Medelo, 64 SCRA 359 (1975)
6) Carreon v. Agcaoili, 1 SCRA 521 (1961)
7) McMicking v. Sy Conbieng, 21 Phil 211 (1912)
8) Pereira v. Court of Appeals, 174 SCRA 154 (1939)
9) Jerez v. Nietes, 30 SCRA 905 (1969)

RULE 75 PRODUCTION OF WILL, ALLOWANCE OF WILL NECESSARY

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILLS
Nature of probate of a will
y
Jurisdictional requirements for probate of a will
Scope of inquiry on proceeding to probate will
Proof required on probate hearing
Binding force of trial court order allowing or disallowing a will
When jurisdiction vest

Cases:
1) Fernandez v. Dimagiba, 21 SCRA 428 (1967)
2) Mercado v. Santos, 66 SCRA 215 (1938)
3) Sumilang v. Ramagosa, 21 SCRA 1369 (1967)
4) Balanay v. Martinez, 64 SCRA 452 (1975)
5) Pastor Jr. v. Court of Appeals, 122 SCRA 885 (1983)
6) US v. Chiu Guimco, 36 Phil 917 (1917)
7) Rodriguez v. Borja, 17 SCRA 418 (1966)
8) Teotico v. Del Val, 13 SCRA 406 (1965)
9) Fernando v. Crisostomo, 90 SCRA 585 (1951)
10) Araujo v. Celis, 6 Phil 459 (1906)
11) Lim Billian v. Suntay, 63 Phil 793 (1936)
12) Basa v. Mercado, 61 Phil 632 (1935)
13) De Aranz v. Galing, 161 SCRA 628 (1988)
14) In re Estate of Johnson, 39 Phil 156 (1918)
15) Abut v. Abut, 45 SCRA 326 (1972)
16) Rodelas v. Aranza, 119 SCRA 16 (1982)
17) Gan v. Yap, 104 Phil509 (1958)
18) Gago v. Mamuyac, 49 Phil 902 (1927)
19) Aldanese v. Salutillo, 47 Phil 548 (1925)
20) Cabang v. Delfinado, 34 Phil 291 (1916)
21) Avera v. Garcia, 42 Phil 145 (1921)
22) Solivio v. Court of Appeals, 182 SCRA 119 (1990)
23) Manalo v. Paredes, supra
24) Riera v. Palmaroli, 40 Phil 105 (1919)
25) Manahan v. Manahan, 58 Phil 448 (1933)

RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF THE PHILIPPINES

Article 815 to 817 of the CC
Requisites of probate of a will allowed in a foreign state

Cases:
1) Suntay v. Suntay, 95 Phil 500 (1954)
2) Fluemer v. Hix, 54 Phil 610 (1930)
3) Miciano v. Brimo, 50 Phil 867 (1924)
4) Leon & Ghezzi v. Manufacturers Life Insurance Co., 90 Phil 459 (1951)

RULE 78 RULE 85 AND RULE 87

Who may serve as executors and administrators
Executor v. Administrator
Other ground for disqualification or incompetency
When are letters of administration granted
Kinds of administrators
Interest required to oppose issuance of letters testamentary
Special Administrator
Bond of executor and administrator
Inventory and Appraisal
Powers and duties of executor and administrator
Accountability and compensation of executor and administrator
Action by and against executor and administrator
Cases:
1) Guerrero v. Teran, 13 Phil 212 (1909)
From the order of the judge annulling the appointment of the said Maria
Munoz y Gomez her lawyers appealed to the Supreme Court, which appeal
was subsequently withdrawn. The order therefore revoking the appointment
of the said Maria Munoz y Gomez became final. The mere fact, however, that
she had been removed as said guardian did not relieve her, nor her
bondsmen from liability to the minors during the time that she was duly
acting as said guardian. It must be clear, therefore, that the said Maria Munoz
y Gomez is responsible to said minors for the administration of their interests
in the estate of the said Antonio Sanchez Munoz from the time of her
acceptance of said appointment on the 18th day of March, 1902, up to the
time of her removal on the 6th day of October, 1906. If during this time she
allowed other persons to handle the property of her wards and if any
mismanagement or loss occurred thereby, the responsibility must fall upon
her. Unquestionably, she may have an action against the persons to whom

she entrusted the direct management of said estate for any loss which they
may have negligently and corruptly occasioned her. Therefore, if any loss
occurred to the Plaintif between the 18th day of March, 1902, and the 6th
day of October, 1906, they have a right of action only against the said Maria
Munoz Gomez as their legal guardian and under the law the administratrix of
the property of their estate.
2) Navas v. Garcia, 44 Phil 711 (1923)
t is well settled that a probate court cannot arbitrarily and without sufficient reason
disregard the preferential rights of the surviving spouse to the administration of the
estate of the deceased spouse. But, if the person enjoying such preferential rights is
unsuitable, the court may appoint another person. (Paragraph 2 of sec. 642 of the
Code of Civil Procedure.) The determination of a person's suitability for the office of
administrator rests, to a great extent, in the sound judgment of the court exercising
the power of appointment and such judgment will not be interfered with on appeal
unless it appears affirmatively that the court below was in
error.chanroblesvirtualawlibrary chanrobles virtual law library

In the present case the court based its ruling on the fact that it appeared from the
record in Civil Case No. 1041 of the same court, that the appellant had adverse
interest in the estate of such a character as to render him unsuitable as
administrator. Unsuitableness may consist in adverse interest of some kind or
hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) T
3) Mercado v. Vda. De Jaen, 64 Phil 75 (1937)
The reasons advanced by the appellants do not seem to carry sufficient
weight to warrant the reversal of the appealed orders. When the retired
bishop Monsignor Juan Bautista Perfecto Gorordo chose Father Emiliano
Mercado as executor and administrator of his estate after his death, he must
have had good and sufficient reasons therefore, and his will must be
respected. The evidence shows that when the deceased bishop made his will
naming said priest in preference to anybody else, he was in the full
enjoyment of his intellectual faculties. Under the circumstances, it is not only
just but also right to fully comply with his last will; and this is precisely what
the lower court did in confirming the appointment of Father Mercado as
executor herein. As a matter of fact, section 641 of Act No. 190 provides that
when a will has been probed and allowed, the court is bound to issue letters
testamentary thereon to the person named as executor therein provided he
accepts the trust and gives the bond as required by law, which Father
Emiliano Mercado certainly did willingly before assuming his trust. While it is
true, as the appellants contend, that this provision of the law should not be
strictly interpreted because the court would be deprived of its power not to
appoint, in certain cases, one who is unworthy of the trust, notwithstanding
the fact that he was named as such by the testator (sec. 653, Act No. 190); it
is also true that in order to do this, the unworthiness, incapacity, ineptitude

and unfitness of such person must be manifest and real and not merely
imaginary.
4) Ozaeta v. Pecson and BPI, 93 Phil 416 (1953)
The question posed by the petition filed in this case is: Does a probate court
commit an abuse of discretion if, pending an appeal against its order or
judgment admitting a will to probate and appointing as judicial administrator the
person named therein as executor, it appoints as special administrator any
person other than the executor named in the will?
It should be noted at the outset that Rule 81 of the Rules of Court, under the
provisions of which the order appealed from was made, grants discretion to the
probate court to appoint or not to appoint a special administrator. It is silent as
to the person that may be appointed as special administrator, unlike section 6 of
Rule 79, which expressly gives the order of preference of the persons that may
be appointed regular administrator. We have held in the case of Roxas vs.
Pecson, however, that the appointment of special administrators is not governed
by the rules regarding the appointment of regular administrators. (Roxas vs.
Pecson, 82 Phil., 407, 46 Off. Gaz. [5] 2058.) But we further held, however, that
while the choice of the person lies within the court's discretion, such discretion
should not be a whimsical one, but one that is reasonable and logical and in
accord with fundamental legal principles and justice. The fact that a judge is
granted discretion does not authorize him to become partial, or to make his
personal likes and dislikes prevail over, or his passions to rule, his judgment.
Such discretion must be based on reason and legal principle, and it must be
exercised within the limits thereof. And there is no reason why the same
fundamental and legal principles governing the choice of a regular administrator
should not be taken into account in the appointment of the special administrator.
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one of his confidence, one who
can be trusted to carry out his wishes in the disposal of the estate. The
curtailment of this right may be considered as a curtailment of the right to
dispose. And as the rights granted by will take effect from the time of death
(Article 777, Civil Code of the Philippines), the management of his estate by the
administrator of his choice should be made as soon as practicable, when no
reasonable objection to his assumption of the trust can be interposed any longer.
It has been held that when a will has been admitted to probate, it is the duty of
the court to issue letters testamentary to the person named as executor upon
his application (23 C.J. 1023). It is the testator that appoints his executor, as the
question as to his peculiar fitness for such a position or his want of ability to
manage the estate can not be addressed to the discretion of the county judge.
(Holbrook vs. Head, 6 S.W. 592, 593, 9 Ky. 755.).
In the case at bar, the will has already been admitted to probate, and
respondent judge himself has expressly appointed petitioner as administrator.
The only reason or ground, therefore, for suspending his appointment, and for

the appointment of a special administrator, who is not the petitioner himself, is a

very technical one. It also appears that the Philippine Trust Company, which had
acted as special administrator for a period of only a few months, has submitted a
bill for P90,000. This would cut deep into the income of the estate, and if the
new special administrator appointed by the respondent judge takes office, it is
not improbable that the estate may again be subjected to the same expensive
cost of administration. Under these circumstances, it would seem unreasonable
to refuse to appoint the petitioner as special administrator. To do so would be
delaying the fulfillment of the wishes of the testator and subjecting the estate to
unnecessary expense. Petitioner has cited precedents in the surrogate courts of
the State of New York to support his claim that as the will appointing him regular
administrator has been admitted to probate by the trial judge, he should now be
appointed special administrator during the pendency of the appeal against the
order admitting the will to probate

5) De Guzman v. Limcolioc, 68 Phil 673 (1939)

The principal consideration reckoned with in the appointment of the administrator of
the estate of a deceased person is the interest in said estate of the one be
appointed as such administrator. This is the same consideration which the law takes
into account in establishing the preference of the widow to administer the estate of
her husband, upon the latter's death, because she is supposed to have an interest
therein as a partner in the conjugal partnership. But this preference established by
law is not absolute, if there are other reasons justifying the appointment of an
administrator other than the surviving spouse. If the interest in the estate is what
principally determines the preference in the appointment of an administrator of the
estate of a deceased person, and if, under the circumstances of each case, it
develops that there is another who has more interest therein than the surviving
spouse, the preference established in the latter's favor falls to the ground.
In the present case, aside from the fact that Apolinario de Guzman, as coadministrator, will administer properties in which he has a greater share than that of
the oppositor, the childless widow of the deceased by a second marriage, and will
act merely as a helper of his sister, there is no ground to believe that he would
squander said properties and the products thereof. The lower court having been of
the opinion that Apolinario de Guzman deserves appointment of co-administrator,
and it being discretionary on its part to determine who should be appointed
administrator of the properties of a deceased person, we believe it unjustified for us
to meddle in the exercise of such discretion, it not appearing that said court has
committed a grave abuse thereof
6) Gonzales v. Aguinaldo, 190 SCRA 112 (1990)
The rule is that if no executor is named in the will, or the named executor or
executors are incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, the court must appoint an administrator of the estate of the deceased 5
who shall act as representative not only of the court appointing him but also of the

heirs and the creditors of the estate. 6 In the exercise of its discretion, the probate
court may appoint one, two or more co-administrators to have the benefit of their
judgment and perhaps at all times to have different interests represented. 7

In the appointment of the administrator of the estate of a deceased person, the

principal consideration reckoned with is the interest in said estate of the one to be
appointed as administrator. 8 This is the same consideration which Section 6 of Rule
78 takes into account in establishing the order of preference in the appointment of
administrators for the estate. The underlying assumption behind this rule is that
those who will reap the benefit of a wise, speedy, economical administration of the
estate, or, on the other hand, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to
administer the estate correctly. 9

Administrators have such an interest in the execution of their trust as entitle them
to protection from removal without just cause. 10 Hence, Section 2 of Rule 82 of the
Rules of Court provides the legal and specific causes authorizing the court to
remove an administrator. 11

While it is conceded that the court is invested with ample discretion in the removal
of an administrator, it however must have some fact legally before it in order to
justify a removal. There must be evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the rules or the orders of the
court, which it deems sufficient or substantial to warrant the removal of the
administrator. In making such a determination, the court must exercise good
judgment, guided by law and precedents.
The above facts, we note, show that petitioner had never abandoned her role as coadministratrix of the estate nor had she been remiss in the fullfilment of her duties.
Suffice it to state, temporary absence in the state does not disqualify one to be an
administrator of the estate. Thus, as held in re Mc Knight's Will, a temporary
residence outside of the state, maintained for the benefit of the health of the
executors' family, is not such a removal from the state as to necessitate his removal
as executor.
. . . It seems quite clear that a temporary absence from the state on account of ill
health, or on account of business or for purposes of travel or pleasure, would not
necessarily establish the fact that an executor "has removed" from the estate,
within the intent of the statute. The learned surrogate was evidently satisfied that
the sojourn of these executors in New Jersey was nothing more than a departure
from the state for the benefit of relatives, not designed to constitute a permanent
change of abode, and contemplating a return to New York as soon as the purpose of
their absence should be accomplished. In this view, I am inclined to think that he
was right in refusing to hold that he was constrained to revoke the letters by the

provisions of the Code to which I have referred. I therefore advise an affirmance of

the order. 16
Finally, it seems that the court a quo seeks refuge in the fact that two (2) of the
other three (3) heirs of the estate of the deceased (Teresa Olbes and Cecilia Favis
Gomez) have opposed the retention or re-appointment of petitioner as coadministratrix of the estate. Suffice it to state that the removal of an administrator
does not lie on the whims, caprices and dictates of the heirs or beneficiaries of the
estate, nor on the belief of the court that it would result in orderly and efficient
administration. In re William's Adm'r., the court held:
A county court having appointed a stranger administrator as expressly authorized
by Ky. St. 3897, after the relatives of decedent had lost their right of precedence,
could not remove the appointee merely because of the request of relatives and the
belief upon the part of the court that the best interest of deceased would be thereby
subserved, since the administrator had such an interest as entitled him to
protection from removal without cause. 17
7) Johannes v. Harvey, 43 Phil 175 (1922)
It is often necessary to have more than one administration of an estate. When a
person dies intestate owning property in the country of his domicile as well as in a
foreign country, administration is had in both countries. That which is granted in the
jurisdiction of decedent's last domicile is termed the principal administration, while
any other administration is termed the ancillary administration. The reason for the
latter is because a grant of administration does not ex proprio vigore have any
effect beyond the limits of the country in which it is granted. Hence, an
administrator appointed in a foreign state has no authority in the United States. The
ancillary administration is proper, whenever a person dies, leaving in a country
other than that of his las domicile, property to be administered in the nature of
assets of the decedent, liable for his individual debts or to be distributed among his
heirs. (23 C. J., 1010, et seq.; 24 C. J., 1109, et seq.; Wilkins vs. Ellett [1882], 108 U.
S., 256; Perez vs. Aguerria [1901], 1 Porto Rico Fed., 443; Vaughn vs. Barret [1833],
5 Vt., 333.)

The principal administration in this instance is that at the domicile of the late
Carmen Theodora Johannes in Singapore, Straits Settlements. What is sought in the
Philippine Islands is an ancillary administration subsidiary to the domiciliary
administration, conformable to the provisions of sections 601, 602, and 603 of the
Code of Civil Procedure. The proper course of procedure would be for the ancillary
administrator to pay the claims of creditors, if there be any, settle the accounts, and
remit the surplus to the domiciliary jurisdiction, for distribution among the next of
kin. Such administration appears to be required in this jurisdiction since the
provisions of section 596 of the Code of Civil Procedure, which permit of the
settlement of certain estates without legal proceedings, have not been met. The
decision of this court in Baldemor vs. Malangyaon ([1916]), 34 Phil., 368), on which

relators rely, is then not in point because predicated directly on the provisions of the
section last cited.

It is almost a universal rule to give the surviving spouse a preference when an

administrator is to be appointed, unless for strong reasons it is deemed advisable to
name someone else. This preference has particular force under Spanish law
precedents. (4 Escriche, Diccionario de Legislacion y Jurisprudencia, 1085.)
However, the Code of Civil Procedure, in section 642, while naming the surviving
husband or wife, as the case may be, as one to whom administration can be
granted, leaves this to the discretion of the court to determine, for it may be found
that the surviving spouse is unsuitable for the responsibility. Moreover,
nonresidence is a factor to be considered in determining the propriety of the
appointment, and in this connection, it is to be noted that the husband of the
deceased, the administrator of the principal administration, resides in Singapore.
Undoubtedly, if the husband should come into this jurisdiction, the court would give
consideration to this petition that he be named the ancillary administrator for local
purposes. Ancillary letters should ordinarily be granted to the domicilliary
representative, if he applies therefor, or to his nominee, or attorney; but in the
absence of express statutory requirement the court may in its discretion appoint
some other person. (24 C. J., 1114.)

There is still another aspect to the case. This is that pursuant to section 783 of the
Code of Civil Procedure, an order of a Court of First Instance appointing an
administration of the estate of a deceased person constitutes a final determination
of the rights of the parties thereunder, within the meaning of the statute, and is
appealable
8) Gutierrez de Ocampo v. Valera Calderon, 59 Phil 631
As stated above the appellants (borthers and sisters of deceased) in this case are
not forced heirs of the deceased and therefore have no right to any part of the
property left by the testator, once he had disposed of the same by will. If any of
them were forced heirs they would be entitled to intervene in this case and protect
their interest in so far as they may have been prejudiced by the will. It is evident
therefore that they have not been injured or prejudiced in any manner whatsoever.
Only forced heirs whose rights have been prejudiced have a right to intervene in a
case of this character.
9) Trillana v. Crisostomo, 89 Phil 710
Besides, the appellants in the present case, who merely allege in their petition for
relief that they are "nephews and nieces and therefore legal heirs of the deceased
Damasa Crisostomo," without specifying the degree of relationship they had the
latter, do not pretend that it if the will October 19, 1949, be disallowed, they will
inherit the estate left by the testatrix. They contend that said will should be
probated jointly or together with the will of August 16, 1948, and the latter be

allowed instead of the former. As in her will of October 19, 1949, as well in that of
August 16, 1948, the testatrix is leaving all her properties as legacies to other
persons, the appellants have no interest in the probate of said wills, and they can
not appeal from the judgment which allowed one of them instead of the other.

Appellants argue that they are in interested parties and therefore may appeal in the
present case, because in the event the will of October 19 is disallowed and in its
that of August 16 is allowed, and the legacies in the latter are declared invalid or
the legatees incapable to inherit, the legacies will go to appellants. This argument
has no merit. In civil actions and special proceedings, unless otherwise provided by
law, the interest in order that a person may be a party on appeal must be material
and direct, so that he will be materially and directly benefited or injured by the
court's order, decree or judgment: and not indirect or contingent (Espinosa vs.
Barrios, 40 Off. Gaz., [8 Supp. No. 12]. p. 145). The interest claimed by the
appellants is purely contingent or dependent upon several uncertain and future
events to (1) The disallowance of the will of October 19, 1948 (2)The allowance of
the will of August 16, 1948, and (3) invalidation of certain legacies left in said will of
August 16, 1948.
10)

Gutierrez v. Villegas, 5 SCRA 313 (1962)

Moreover, it cannot be successfully denied that Adela Santos Gutierrez is an

indispensable party to the proceedings in question. Her interest in the estate is not
inchoate, it was established at the time of death of Irene Santos on November 11,
1954. While it is true that she executed a deed of assignment, it is also a fact that
she asked the same to be annulled, which action is now pending before the Rizal
CFI, Pasig Branch. Although Adela had filed a manifestation dropping herself from
the proceedings and presenting therewith the supposed Deed of Assignment, the
record, nevertheless fails to show that action thereon had been taken by the
probate Court. Every act intended to put an end to indivision among co-heirs and
legatees or devisees is deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction (Art. 1082, NCC). No
serious argument can be offered to deny the co-heirship of appellee in the estate
under probate. It appearing (if We assume the due execution of the Deed of
Assignment), that the transaction is in the nature of extrajudicial partition, court
approval is imperative, and the heirs cannot just divest the court of its jurisdiction
over the estate and over their persons, by the mere act of assignment and
desistance. Thus, in the case of Sandoval v. Santiago, G.R. No. L-1723, May 30,
1949, this Court said: ". . . and the heirs of the deceased Marquez could not divest
the Court of First Instance of its already acquired jurisdiction by the mere fact of
dividing and distributing extrajudicially the estate of the deceased among
themselves". But even if the partition had been judicially approved on the basis of
the alleged deed of assignment, an aggrieved heir does not lose her standing in the
probate court.

In our opinion, the court that approved the partition and the agreement in
ratification thereof may annul both whenever, as it is here alleged, the approval was
obtained by deceit or fraud, and the petition must be filed in the courts of the
intestate proceedings, for it is generally admitted that probate courts are authorized
to vacate any decree or judgment procured by fraud, not only while the proceedings
in the course of which it was issued are pending, but even, as in this case, within a
reasonable time thereafter. (Trillana v. Crisostomo, G.R. No. L-3378, Aug. 22, 1951;
Espinosa v. Barrios. 70 Phil. 311).

We agree with appellee that the motion in question is not one of intervention, but
solely a plea to enforce a right and that is to receive pleadings and orders related to
the case. Evidently, the use of the word "intervention" in the manifestation and
pleadings presented by Adela was resorted to for want of another appropriate word.
In effect, all she wanted to convey was that she should participate or continue
taking part in the case for being an original party therein. It was her belief that in
filing the manifestation dropping herself from the proceedings (but which she later
informed the court to have been secured thru fraud), her standing might have been
affected. Intervention as contemplated by the Rules is a proceeding in a suit or
action by which a third person is permitted by the court to make himself a party,
either joining plaintiff in claiming what is sought by the complaint, or uniting with
defendant in resisting the claims of plaintiff, or demanding something adversely to
both of them; the act or proceeding by which a third person becomes a party in a
suit pending between others; the admission, by leave of court, of a person not an
original party to pending legal proceedings, which such person becomes a party
thereto for the protection of some right or interest alleged by him to be affected by
such proceedings (Judge of Camarines Sur, et al. vs. David, et al., G.R. No. 45454,
April 12, 1939, cited in Francisco's Rules of Court, Vol. I, Part I, p. 639, emphasis
supplied). The circumstances stated above do not fit the status of Adela in the
probate proceedings; she was not a third person; she was an original party therein.
11)

Duran v. Duran, 20 SCRA 379

The Rules of Court provides that a petition for administration and settlement of an
estate must be filed by an "interested person" (See. 2, Rule 79). Appellants contend
that the deed of assignment executed by Cipriano did not operate to render him a
person without interest in the estate. Relying on In re Irene Santos, L-11848, May
31, 1962, they argue that an assignment by one heir of his share in the estate to a
co-heir amounts to a partition needing approval by the settlement court to be
effective; and that the assigning heir does not lose his status as a person interested
in the estate, even after said assignment is approved by the court.

The situation in the Santos case involves an assignment between co-heirs pendente
lite, during the course of settlement proceedings, properly and validly commenced.
At the time of said assignment, therefore, the settlement court had already acquired
jurisdiction over the properties of estate. As a result, any assignment regarding the

same had to be approved by said court. And since the approval the court is not
deemed final until the estate is closed the assigning heir remains an interested
person in proceedings even after said approval, which can be vacated is given.

In the present case, however, the assignment took place when no settlement
proceedings was pending. The properties subject matter of the assignment were not
under the jurisdiction of a settlement court. Allowing that the assignment must be
deemed a partition as between the assignor and assignee, the same does not need
court approval to be effective as between the parties. An extrajudicial partition is
valid as between the participants even if the requisites of Sec. 1, Rule 74 for
extrajudicial partition are not followed, since said requisites are for purposes of
binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196).
Should it be contended that said partition was attended with fraud, lesion or
inadequacy of price, the remedy is to rescind or to annul the same in an action for
that purpose. And in the meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is annulled or rescinded, it is deemed
valid and effective against him, so that he is left without that "interest" in the estate
required to petite for settlement proceedings.

Anent appellant Miguel Duran, he sought in his petition below to "join petitioner
Cipriano Duran as co-petitioner in the latter's petition . . . and incorporates herein
by adoption all the allegations made in said petition." (Record on Appeal, pp. 45-46).
The same, therefore, amounted to a petition to intervene in the settlement
proceedings. As aptly ruled by the court a quo, since there was really no settlement
proceedings in the first place, the petition to intervene must be denied.

Finally, although Josefina Duran prayed to be appointed administratrix, her doing so

did not amount to ratification of the petition for settlement under the ruling in
Eusebio v. Valmores, 97 Phil. 163, since she did so merely by way of an alternative
prayer, should her motion to dismiss fail. And said motion to dismiss was properly
sustained.
12)

De Guzman v. Angeles, 162 SCRA 347 (1988)

As stated earlier, the pivotal issue in the instant petition hinges on whether or not a
probate court may appoint a special administratrix and issue a writ of possession of
alleged properties of a decedent for the preservation of the estate in a petition for
the settlement of the intestate estate of the said deceased person even before the
probate court causes notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court.

As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211) we ruled
that before a court may acquire jurisdiction over the case for the probate of a will

and the administration of the properties left by a deceased person, the application
must allege the residence of the deceased and other indispensable facts or
circumstances and that the applicant is the executor named in the will or is the
person who had custody of the will to be probated.

In the instant case, there is no doubt that the respondent court acquired jurisdiction
over the proceedings upon the filing of a petition for the settlement of an intestate
estate by the private respondent since the petition had alleged all the jurisdictional
facts, the residence of the deceased person, the possible heirs and creditors and the
probable value of the estate of the deceased Manolito de Guzman pursuant to
Section 2, Rule 79 of the Revised Rules of Court.

We must, however, differentiate between the jurisdiction of the probate court over
the proceedings for the administration of an estate and its jurisdiction over the
persons who are interested in the settlement of the estate of the deceased person.
The court may also have jurisdiction over the "estate" of the deceased person but
the determination of the properties comprising that estate must follow established
rules.

Section 3, Rule 79 of the Revised Rules of Court provides:

Court to set time for hearing. Notice thereof. When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to be given to the
known heirs and creditors of the decedent, and to any other persons believed to
have an interest in the estate, in the manner provided in sections 3 and 4 of Rule
76.

It is very clear from this provision that the probate court must cause notice through
publication of the petition after it receives the same. The purpose of this notice is to
bring all the interested persons within the court's jurisdiction so that the judgment
therein becomes binding on all the world. (Manalo v. Paredes, 47 Phil. 938; Moran,
Comment on the Rules of Court Volume 3,1980 Edition) Where no notice as required
by Section 3, Rule 79 of the Rules of Court has been given to persons believed to
have an interest in the estate of the deceased person; the proceeding for the
settlement of the estate is void and should be annulled. The requirement as to
notice is essential to the validity of the proceeding in that no person may be
deprived of his right to property without due process of law. (Eusebio v. Valmores,
96 Phil. 163).

Verily, notice through publication of the petition for the settlement of the estate of a
deceased person is jurisdictional, the absence of which makes court orders affecting
other persons, subsequent to the petition void and subject to annulment. (See
Eusebio v. Valmores, supra)

In the instant case, no notice as mandated by section 3, Rule 79 of the Revised

Rules of Court was caused to be given by the probate court before it acted on the
motions of the private respondent to be appointed as special administratrix, to issue
a writ of possession of alleged properties of the deceased person in the widow's
favor, and to grant her motion for assistance to preserve the estate of Manolito de
Guzman.

The "explanation" which we required of the respondent Judge for his apparent haste
in issuing the questioned orders, states:

xxx

xxx

xxx

10.
In issuing the subject Orders, undersigned acted in the honest conviction that
it would be to the best interest of the estate without unduly prejudicing any
interested party or third person. Any delay in issuing the said Orders might have
prejudiced the estate for the properties may be lost, wasted or dissipated in the
meantime. (Rollo, p. 86)

xxx

xxx

xxx

This explanation while seemingly plausible does not sufficiently explain the
disregard of the Rule. If indeed, the respondent court had the welfare of both the
estate and the person who have interest in the estate, then it could have caused
notice to be given immediately as mandated by the Revised Rules of Court. All
interested persons including herein petitioner who is the biggest creditor of the
estate listed in the Petition (P850,240.80) could have participated in the
proceedings especially so, because the respondent immediately filed a motion to
have herself appointed as administratrix. A special administrator has been defined
as the "representative of decedent appointed by the probate court to care for and
preserve his estate until an executor or general administrator is appointed." (Jones
v. Minnesota Transfer R. Co. 1965 ed., at 106 cited in Fule v. Court of Appeals, 74
SCRA 189). The petitioner as creditor of the estate has a similar interest in the
preservation of the estate as the private respondent who happens to be the widow
of deceased Manolito de Guzman. Hence, the necessity of notice as mandated by
the Rules of Court. It is not clear from the records exactly what emergency would

have ensued if the appointment of an administrator was deferred at least until the
most interested parties were given notice of the proposed action. No unavoidable
delay in the appointment of a regular administrator is apparent from the records.

As argued by the petitioner:

The position of special administrator, by the very nature of the powers granted
thereby, is one of trust and confidence. It is a fiduciary position and, therefore,
requires a comprehensive determination of the suitability of the applicant to such
position. Hence, under Philippine jurisprudence, it has been settled that the same
fundamental and legal principles governing the choice of a regular administrator
should be taken in choosing the special administrator (Francisco, Vol. VB, page 46
citing the cases of Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.)

In order to fully and correctly ascertain the suitability of the applicant to the trust, a
hearing is obviously necessary wherein the applicant can prove his qualifications
and at the same time affording oppositors, given notice of such hearing and
application, the opportunity to oppose or contest such application.

The requirement of a hearing and the notification to all the known heirs and other
interested parties as to the date thereof is essential to the validity of the proceeding
for the appointment of an administrator "in order that no person may be deprived of
his right or property without due process of law" (Eusebio v. Valmores, 97 Phil. 163).
Moreover, a hearing is necessary in order to fully determine the suitability of the
applicant to the trust, by giving him the opportunity to prove his qualifications and
affording oppositors, if any, to contest the said application. (Matute v. Court of
Appeals, 26 SCRA 770; emphasis supplied).

Since the position of special administrator is a very sensitive one which requires
trust and confidence, it is essential that the suitability of the applicant be
ascertained in a hearing with due notice to all oppositors who may object precisely
to the applicant's suitability to the trust. (Rollo, pp. 103-104)

If emergency situations threatening the dissipation of the assets of an estate justify

a court's immediately taking some kind of temporary action even without the
required notice, no such emergency is shown in this case. The need for the proper
notice even for the appointment of a special administrator is apparent from the
circumstances of this case.
13)

Garcia Fule v. Court of Appeals, supra

ut the respondent's subsequent act of appointing her as special administratrix only

of the conjugal or community property, and Maria Roxas as special administratrix of
the capital or exclusive property of the decedent, does not seem to be in conformity
with logic or reason. The petitioner has or claims to have the same beneficial
interest after the decision of the court disapproving the will, which is now pending
on appeal, as she had prior to it, because the decision is not yet final and may be
reversed by the appellate court.

Besides, even if the will is not probated, the widow in the present case would have,
under the law, the right of usufruct over one-half of the exclusive property of the
decedent, besides her share in the conjugal partnership. The beneficial interest
required as a qualification for appointment as administrator of the estate of a
decedent is the interest in the whole estate and not only in some part thereof. The
petitioner being entitled to one-half in usufruct of all the exclusive properties of the
decedent, she would have as much if not more interest in administering the entire
estate correctly, in order to reap the benefit of a wise, speedy, economical
administration of the state, and not suffer the consequences of the waste,
improvidence or mismanagement thereof. The good or bad administration of the
property may affect rather the fruits than the naked ownership of a property.

However, for the decision of the question involved in this proceeding it is not
necessary for us to determine whether or not the respondent judge has acted with
grave abuse of discretion in rendering the resolution complained of for the reasons
just stated, in view of our conclusion that the respondent judge acted in excess of
the court's jurisdiction in appointing two separate special administratices of the
estate of the decedent: one of the conjugal or community property and another of
the capital or exclusive property of the deceased Pablo M. Roxas.

According to section 2, Rule 75, taken from section 685 of the former Code of Civil
Procedure, Act No. 190, as amended, "when the marriage is dissolved by the death
of the husband or wife, the community property shall be inventoried, administered,
and liquidated, and the debts thereof paid, in the testate or intestate proceedings of
the deceased spouse." That is the reason why, according to section 4, Rule 78, the
"letters testamentary, or letters of administration with the will annexed, shall
extend to all the estate of the testator in the Philippines," and section 6, Rule 79,
provides for appointment of one administrator in case of intestacy, except in certain
cases in which two or more joint, but not separate and independent, administrators
may be appointed under section 3, Rule 82. Therefore the administrator appointed
to administer and liquidate the exclusive property of a deceased spouse shall also
administer, liquidate and distribute the community property, because the estate of
a deceased spouse which is to be settled, that is, administered, liquidated and
distributed, consists not only of the exclusive properties of the decedent, but also of
one-half of the assets of the conjugal partnership, if any, which may pertain to the

deceased, as determined after the liquidation thereof in accordance with the

provisions of articles 1421 to 1424 of the Civil Code.

There is absolutely no reason for appointing two separate administrators, specially if

the estate to be settled is that of a deceased husband as in the present case, for
according to articles 1422 and 1423 of the Civil Code, only after the dowry and
parapherna of the wife and the debts, charges, and obligations of the conjugal
partnership have been paid, the capital or exclusive property of the husband may
be liquidated and paid in so far as the inventoried estate may reach; and if the
estate inventoried should not be sufficient to pay the dowry and the parapherna of
the wife and the debts, charges and obligations of the partnership, the provision of
Title XVII of the Civil Code relating to concurrence and preference of credits shall be
observed. If two separate administrators are appointed as done in the present case,
in every action which one of them may institute to recover properties or credit of
the deceased, the defendant may raise the question or set up the defense that the
plaintiff has no cause of action, because the property or credit in issue belongs to
the class which is being administered by the other administrator, which can not be
done if the administrator of the entire estate is only one.

As under the law only one general administrator may be appointed to administer,
liquidate and distribute the estate of a deceased spouse, it clearly follows that only
one special administrator may be appointed to administer temporarily said estate,
because a special administrator is but a temporary administrator who is appointed
to act in lieu of the general administrator. "When there is delay in granting letters
testamentary or of administration occasioned by an appeal from the allowance or
disallowance of will, or from any other cause, the court may appoint a special
administrator to collect and take charge of the estate of the deceased until the
questions causing the delay are decided and executors or administrators thereupon
appointed," (sec. 1, Rule 81). Although his powers and duties are limited to "collect
and take charge of the goods, chattels, rights, credits, and estate of the deceased
and preserve the same for the executor or administrator afterwards appointed, and
for that purpose may commence and maintain suits as administrator, and may sell
such perishable and other property as the court orders sold. A special administrator
shall not be liable to pay any debts of the deceased." (Section 2, Rule
81.)lawphil.net

In view of all the foregoing, we hold that the court below has no power to appoint
two special administratices of the estate of a deceased husband or wife, one of the
community property and another of the exclusive property of the decedent, and
therefore the respondent judge acted in excess of the court's jurisdiction in
rendering or issuing the order complained of, and therefore said order is hereby set
aside, with costs against the respondents. So ordered.

14)
15)

Roxas v. Pecson, 82 Phil 407 (1948)

Pijuan v. Vda. De Gurrea, 18 SCRA 898 (1966)

It may not be amiss to note that the preference accorded by the aforementioned
provision of the Rules of Court to the surviving spouse refers to the appoint of a
regular administrator or administratrix, not to that of a special administrator, and
that the order appointing the latter lies within the discretion of the probate
court,and is not appealable.
16)

Tan v. Go Chiong Lee, 46 Phil 200 (1924)

The standard of responsibility of the administrator is best measured as in essence

the responsibility of a bailee. Like any bailee, he must pursue his discretion honestly
and in good faith, or he will become personally liable, to those who are interested in
the estate, for waste, conversion, or embezzlement. But where an administrator,
entrusted with the carrying on of an estate, acts in good faith and in accordance
with the usual rules and methods obtaining in such business, he will not be held
liable for losses incurred.
17)

Lizzarga Hermanos v. Abada, 40 Phil 124

he estate owed plaintiffs less than P13,000 when the commissioners passed on their
claim. Part of this has been paid, and there was a balance due plaintiffs of
P8,555.78 at the time of the trial, plus interest. The plaintiffs, after their claim had
been presented and allowed by the commissioners, made advances to the
administratrix till their claim was more than P68,000.
It is urged that the major part of this debt of P68,000 is administration expenses,
and as such is chargeable against the assets of the estate. No reason is given why
the expense of administration should be so great, and the evidence fails to sustain
this position.
The administration expense would be the necessary expenses of handling the
property, of protecting it against destruction or deterioration, and possibly
producing a crop, but if plaintiffs, holding a claim originally for less than P13,000
against the estate, let the administratrix have money and effects till their claim
grow to P68,000 they can not be permitted to charge this amount as expense of
administration. They might be allowed to charge it against the current revenue from
the hacienda or the net proceeds of the "exploitation of the hacienda" for which it
was obtained and used, as plaintiffs allege, but it cannot relate back to the
presenting of their claim to the commissioners, and be a charge against the
inheritance of the heirs, or even a claim to prorate with other creditors' claims
allowed by the commissioners. By expense of administration we understand to be
the reasonable and necessary expense of caring for the property and managing it
till the debts are paid, as provided by law, and of dividing it, if necessary, so as to
partition it and deliver to the heirs.
The court could not approve a settlement saddling upon the estate debts it never
owed, and if it did, its approval would be a nullity.

18)

Warner Barnes v. Luzon Surety, 95 Phil 924 (1954)

Under the first assignment of error, the appellant contends that the lower court had
no jurisdiction to pass upon its liability under the bond in question, because it is
only the probate court that can hold a surety accountable for any breach by the
administratrix of her duty, citing the case of Mendoza vs. Pacheco, 64 Phil., 134. It
is, however, noteworthy that while the citation is to the effect that the probate court
has jurisdiction over the forefeiture or enforcement of an administrator's bond, it
was not held therein that the same matter may not be litigated in an ordinary civil
action brought before the court of first instance.
Under the third and fourth assignments of error, it is insisted for the appellant that
the bond in question was executed in favor of the Republic of the Philippines and
that the proper procedure would seem to be that it might be enforced in the
administration proceedings were it was filed. This view is likewise not tenable.
Though nominally payable to the Republic of the Philippines, the bond is expressly
for the benefit of the heirs, legatees and creditors of the Estate of the deceased
Aguedo Gonzaga. There is no valid reason why a creditor may not directly in his
name enforce said bond in so far as he is concerned.
Under the fifth assignment of error, it is alleged that the plaintiffs should have first
filed a claim against the Estate of the deceased administratrix Agueda Gonzaga, in
conformity with section 6 of Rule 87 of the Rules of Court providing that "Where the
obligation of the decedent is joint and several with another debtor, the claim shall
be filed against the decedent as if he were the only debtor, without prejudice to the
right of the estate to recover contribution from the other debtor." Apart from the
fact that his defense was not pleaded either in a motion to dismiss or in the answer
and was therefore waived (section 10, Rule 9 of the Rules of Court), it appears that
even as late as September 17, 1952, when the present complaint was filed, (more
than two years after the death of Agueda Gonzaga), there were no proceedings for
the administration of her estate, with the result that section 6 of Rule 87 loses its
applicability. Moreover, it is to be noted that the appellant had also chosen to file a
third-party complaint in the present case against Romualdo Araneta, joint and
several counter-guarantor of the deceased administratrix, instead of presenting a
claim against the latter's estate.
19)

Wilson v. Rear, 55 Phil 44

The law does not impose upon an administrator a high degree of care in the
administration of an estate, but it does impose upon him ordinary and usual care,
for want of which he is personally liable. In the instant case there were no
complications of any kind and in the usual and ordinary course of business, the
administrator should have wound up and settled the estate within eight months
from the date of his appointment.
Ruling Case Law, vol. 11, section 142, says:
Winding up Business An executor or administrator ordinarily has no power to
continue the business in which the decedent was engaged at the time of his death;

and this is true although he acts in the utmost good faith and believes that he is
proceeding for the best interests of the estate. The penalty for continuing a
business of the decedent without authority is the imposition of a personal liability on
the executor or administrator so doing for all debts of the business. The normal duty
of the personal representative in reference to such business is limited to winding it
up, and even where the beneficiaries are infants the court cannot authorize the
administrator to carry on the trade of the decedent. However, an exception to the
general rule is sometimes recognized; and so it has been held that in order to settle
an estate the personal representative may, in some cases , be permitted to
continue a business for a reasonable time. For example, such personal
representative when authorized to postpone the sale of the testator's effects may
generally carry on the business for a reasonable time with a view to its sale as a
going concern. Even in such cases the personal representatives are not, however,
entitled to embark in the business more of the testator's property than was
employed in it at his death. (Citing numerous authorities.)
The same principle is also laid down in Cyc., vol., 18,p. 241, where it is said: n
C. Engaging in Business 1. GENERAL RULE. The general rule is that neither an
executor nor an administrator is justified in placing or leaving assets in trade, for
this is a hazardous use to permit of trust moneys; and trading lies outside the scope
of administrative functions. So great a breach of trust is it for the representative to
engage in business with the funds of the estate that the law charges him with all
the losses thereby incurred without on the other hand allowing him to receive the
benefit of any profits that he may make, the rule being that the persons beneficially
interested in the estate may either hold the representative liable for the amount so
used with interest, or at their election take all the profits which the representative
has made by such unauthorized use of the funds of the estate.
20) Luzon Surety v. Quebral, 127 SCRA 295 (1984)
The proper determination of the liability of the surety and of the principal on the
bond must depend primarily upon the language of the bond itself.
Section 1 of Rule 81 of the Rules of Court requires the administrator/executor to put
up a bond for the purpose of indemnifying the creditors, heirs, legatees and the
estate. It is conditioned upon the faithful performance of the administrator's trust
(Mendoza vs. Pacheco, 64 Phil. 134).
Having in mind the purpose and intent of the law, the surety is then liable under the
administrator's bond, for as long as the administrator has duties to do as such
administrator/executor. Since the liability of the sureties is co-extensive with that of
the administrator and embraces the performance of every duty he is called upon to
perform in the course of administration (Deobold vs. Oppermann, 111 NY 531, 19
NE 94), it follows that the administrator is still duty bound to respect the indemnity
agreements entered into by him in consideration of the suretyship
The contention of the defendants-appellants that the administrator's bond ceased to
be of legal force and effect with the approval of the project of partition and

statement of accounts on June 6, 1957 is without merit. The defendant-appellant

Pastor T. Quebrar did not cease as administrator after June 6, 1957, for
administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. And liquidation means the determination of
all the assets of the estate and payment of all the debts and expenses (Flores vs.
Flores, 48 Phil. 982). It appears that there were still debts and expenses to be paid
after June 6, 1957.

And in the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be
partitioned even before the termination of the administration proceedings. Hence,
the approval of the project of partition did not necessarily terminate the
administration proceedings. Notwithstanding the approval of the partition, the Court
of First Instance of Negros Occidental still had jurisdiction over the administration
proceedings of the estate of A.B. Chinsuy and Cresenciana Lipa.
-The sureties of an administration bond are liable only as a rule, for matters
occurring during the term covered by the bond. And the term of a bond does not
usually expire until the administration has been closed and terminated in the
manner directed by law (Hartford Accident and Indemnity Co. vs. White, 115 SW 2d
249). Thus, as long as the probate court retains jurisdiction of the estate, the bond
contemplates a continuing liability (Deobold vs. Oppermann, supra) notwithstanding
the non-renewal of the bond by the defendants-appellants.

It must be remembered that the probate court possesses an all-embracing power

over the administrator's bond and over the administration proceedings and it
cannot be devoid of legal authority to execute and make that bond answerable for
the every purpose for which it was filed (Mendoza vs. Pacheco, 64 Phil. 1-05). It is
the duty of the courts of probate jurisdiction to guard jealously the estate of the
deceased persons by intervening in the administration thereof in order to remedy or
repair any injury that may be done thereto
20)

Cosme de Mendoza v. Pacheco, 64 Phil 134 (1937)

t is clear that a Court of First Instance, exercising probate jurisdiction, is empowered

to require the filing of the administrator's bond, to fix the amount thereof, and to
hold it accountable for any breach of the administrator's duty. Possessed, as it is,
with an all-embracing power over the administrator's bond and over administration
proceedings, a Court of First Instance in a probate proceeding cannot be devoid of
legal authority to execute and make that bond answerable for the very purpose for
which it was filed. It is true that the law does not say expressly or in so many words
that such court has power to execute the bond of an administrator, but by
necessary and logical implication, the power is there as eloquently as if it were
phrased in unequivocal term. When the accountability of an administrator's bond is
spoken of in the very provisions dealing with and bearing directly on administration

proceedings, it would involve a strained construction to hold, as appellants would

have us do, that where an administrator is held liable for a devastravit for having
squandered and misapplied property which he was in duty bound to marshal and
conserve, the estate is without a remedy to go against the administrator's bond in
the same probate proceedings, but in an action outside of and separate from it. In
this connection, it should be observed that section 683 of the Code of Civil
Procedure provides that "Upon the settlement of the account of an executor or
administrator, trustee, or guardians, a person liable as surety in respect to such
amount may, upon application, be admitted as a party to such accounting, and may
have the right to appeal as hereinafter provided." There is here afforded to a person
who may be held liable as surety in respect to an administrator's account the right,
upon application, to be admitted as a party to their accounting, from which we may
not unreasonably infer that a surety, like the appellants in the case before us, may
be charged with liability upon the bond during the process of accounting, that is,
within the recognized confines of probate proceedings, and not in an action apart
and distinct from such proceedings.
It is the duty of courts of probate jurisdiction to guard jealously the estates of the
deceased person by intervening in the administration thereof in order to remedy or
repair any injury that may be done thereto (Dariano vs. Fernandez Fidalgo, 14 Phil.,
62, 67; Sison vs. Azarraga, 30 Phil., 129, 134). "Probate and like courts have a
special jurisdiction only, and their powers as to ancillary or incidental questions
must of necessity to exercise within certain limitations; but such powers include the
right to try questions which arise incidentally in a cause over which such courts
have jurisdiction and the determination of which are necessary to a lawful exercise
of the powers expressly conferred in arriving at a decision. . . . There seems,
however, to be a general tendency, in the absence of express and specific
restrictions to the contrary, to uphold the exercise by these court of such incidental
powers as are, within the purview of their grant of authority, reasonably necessary
to enable them to accomplish the objects for which they were invested with
jurisdiction and to perfect the same. And it has been held that statutes conferring
jurisdiction on such courts, being remedial and for the advancement of justice,
should receive a favorable construction, such as will give them the force and
efficiency intended by the legislature." (15 C. J., 813, 814.) The tendency in the
United States indeed has been towards the enlargement of the powers of probate
courts. In the beginning these courts were possessed but limited powers. Having
originated from the ecclesiastical courts of England, their jurisdiction, following their
English patterns was practically limited to the probate of wills, the granting of
administrators, and the suing for legacies (Plant vs. Harrion, 74 N. Y. Sup., 411, 441;
36 Misc. Rep., 649; Chadwick vs. Chadwick, 13 Pac., 385, 388; 6 Mont., 566; 3 Bl.
Comm., pp. 95-98). But, though they still are often unadvisedly described,
particularly in Connecticut (Griffin vs. Pratt, 3 Conn., 513), as courts of limited,
inferior or special jurisdiction, they have outgrown their limitations and have
become courts with considerably increased powers
21)
22)

Gustilo v. Sian, 53 Phil 155 (1929)

Degala v. Ceniza and Umipig, 78 Phil 791

Under the very rule (Section 2, Rile 83) invoked by the petitioner, the removal of an
administrator lies within the discretion of the court appointing him. The sufficiency
of any ground for removal should thus be determined by said court, whose
sensibilities are, in first place, affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules or the orders of the
court. We cannot merely substitute our way of thinking for that of a lower court in
matters under its discretionary power. And in the case at bar, we cannot hold that
the respondent Judge gravely abused his discretion, particularly in view of the
circumstance that the alleged grounds for removal are not in fact weighty.
We cannot agree to petitioner's contention that simply because Jesus Q. Quintillan,
former administrator removed by the court on the ground of adverse interest, is the
attorney for the respondent administrator, the latter is necessarily disqualified on
the same ground. Any interest which said attorney may have is exclusively personal
to him, in which the respondent Valentin Umipig can have nothing to do.
23)

Chua Tan v Del Rosario, 57 Phil 411 (1932)

It is the duty of the administrator of the testate or intestate estate of a deceased to

present an inventory of the real estate and all goods, chattels, rights, and credits of
the deceased which have come into his possession or knowledge, in accordance
with the provisions of section 668 of the Code of Civil Procedure, and to manage
them according to section 643 of the same Code; and in order that he may have in
his power and under his custody all such property, section 702 of the aforesaid
Code authorizes him to bring such actions for the purpose as he may deem
necessary. Section 642 in providing for the appointment of an administrator where
there is no will or the will does not name an executor, seeks to protect not only the
estate of the deceased but also the rights of the creditors in order that they may be
able to collect their credits, and of the heirs and legatees in order that they may
receive the portion of the inheritance or legacy appertaining to them after all the
debts and expenses chargeable against the deceased's estate have been paid.
Under the provisions of the law, therefore, the judicial administrator is the legal
representative not only of the testate or intestate estate, but also of the creditors,
and heirs and legatees, inasmuch as he represents their interest in the estate of the
deceased.
a final judgment upon the merits rendered against the judicial administratrix of an
intestate estate, as such, in a case where she is plaintiff and the administratrix of
another intestate estate, as such is the defendant, in which she seeks to secure an
accounting of funds alleged to have been delivered in trust by the deceased,
represented by the plaintiff administratrix, to the other deceased, represented by
the defendant administratrix, constitutes res judicata in another case where the
heirs of the alleged donor are plaintiffs and the administratrix of the supposed
trustee is defendant, and in which the partition of the same funds and the products
thereof is sought between the heirs of both, under the same allegation of trust, the
alleged trustee being the adopted child of the donor.
24)

Adapon v. Maralit, 69 Phil 383 (1940)

the sole question to be resolved in this appeal is whether or not a Court of First
Instance, in the exercise of its probate under section 599 of the Code of Civil
Procedure, could upon petition of an oppositor to include certain properties in the
inventory prepared by the administrator, to some of which the said administrator, to
some of which the said administrator has laid claims of proprietorship, determine
the question of ownership and thereby meet the issues as thus presented.
Under section 599 of the Code of Civil Procedure, the probate jurisdiction of the
Court of First Instance relates only to matters having to do with the settlement of
estates and probate of wills of deceased persons, the appointment and removal of
guardians and trustees, and the powers, duties, and rights of guardians and wards,
trustees, and cestuis que trust." As may be seen, the law does not extend the
jurisdiction of a probate court to the determination of questions of ownership that
arise during the proceeding.
In the case of Bauermann vs. Casas (10 Phil., 392-393) this court, in passing upon
the same question now raised observed that "the mere fact that one of the parties
is an executor or administrator of a certain estate does not give exclusive
jurisdiction to the probate court wherein the estate is being settled, of questions
arising between such the executors or administrators and third persons, as to the
ownership of specific property. Of course when it is once determined that certain
property is the property of the estate is being settled, but until this question is
decided the mere allegation that certain property is the property of an estate in
course of jurisdiction over questions touching the ownership of such property and
rights based on the right of ownership." In Devesa vs. Arbes (13 Phil., 281), the
same doctrine was reiterated with greater force and emphasis, the court there
holding that a contested claim of an administrator that certain rights of possession
and ownership are the property, of the estate which he represent must be
determined in a separate action, and not in the administration proceedings." Again,
this Court in Guzman vs. Anog and Anog (37 Phil., 62-63),decided that "when
questions arise as to the ownership of property, alleged to be a part of the estate of
a deceased person, but claimed by some other person to be his property, not by
virtue of any right of inheritance from the deceased, but by title adverse to that of
the deceased and his estate, such questions cannot be determined in that course of
administration proceedings. The Court of First Instance, acting as a probate court,
has no jurisdiction to, adjudicate such contentions, which must be submitted to the
court in the exercise of its general jurisdiction as a Court of First Instance to try and
determine the ordinary actions mentioned in the Code of Civil Procedure." Finally, in
the case of Lunsod vs. Ortega (46 Phil., 676) where the same question like as
presented, the Court reaffirmed the principle enunciated in the foregoing cases
stating that "it is an established doctrine of this court that the mere fact that one of
the parties is the executor or administrator of the estate of a deceased person does
not confer upon the probate court, in which the proceeding for the distribution and
settlement of said estate are pending, exclusive jurisdiction to decide all question
that may arise between the said executor or administrator and third persons as to
the title of a specific property."
25)

Moore & Sons Mercantile Co. v. Wagner, 50 Phil 128 (1927)

May support be demanded when the liabilities exceed the assets of the estate of the
deceased spouse? The judgment of the Supreme Court of Spain of May 28, 1896,
resolves this question affirmatively.
Sometime after the death of her husband, the widow applied for support from the
general inventoried estate of the property from the date of the death of the
husband until the delivery of her share. The court granted the application and the
Audiencia affirmed its decision. The heirs sued a writ of error upon several grounds
among which are the violations of the following articles:
1. Article 1430 of the Civil Code, inasmuch as its wording, letter and spirit
show that the allowance granted the surviving spouse is an advance payment
to be deducted from such share as may be allotted to him when the same is
delivered, and the inventoried credits being greater than the estate left, to
give allowance to the widow would be prejudicial to the creditors who are
entitled to recover them in their entirety.
2. Article 148 of the same Code, inasmuch as the order grants support to the
widow from the beginning of the liquidation of the inventoried estate, in spite
of the fact that the same had not been applied for until two years thereafter,
which is contrary to the provision of said article which requires tha support
shall be paidonly from the date of the filling of the complaint.
The Supreme Court denied the writ on the ground that it was notproven that
the liabilities exceed the assets of the estate, and because the provision of
article 1430 of the Civil Code is entirely independent and has no connection
with those contained in title 6, book 1, of the same Code, among which is
article 148, because they each refer to different kind of rights, and the former
cannot be understood as subordinate to the rules and provisions contained in
said title and book, which regulate support between persons who, according
to law, have the obligation to give it, and those who have the right to receive
the same.
Mr. Manresa, commenting on said article 1430 relative to the said judgment of May
28, 1896, wisely observes "That the support does not encumber the property of the
deceased spouse, but the general estate, and that by the general estate or the
inventoried estate is meant the dowry or capital of the wife; wherefore, even if the
indebtedness exceed the residue of the estate, the wife can always be allowed
support as part payment of the income of her property. In any case, the support is
given prior to the termination of the liquidation of the partnership, and it does not
seem logical to deny the same before knowing exactly the result of the liquidation,
just because of the fear that the liabilities will exceed the estate, or on the ground
of estimates more or less uncertain, and without any sufficient proof of its reality.
The judge or the administrator, as the case may be, must grant the support referred
to in article 1430, when the same is requested, and if the creditors believe that they
are prejudiced by such an action, by separating from the estate a part of its income,
they can appeal to the court therefrom, by satisfactorily proving that there is no
property or asset that may, in any case, be allotted to the interested parties. It
having proven that no property, eitherprivate or conjugal, pertains to the surviving

spouse or the heirs of the deceased, the support cannot be granted, because this, in
effect, according to article 1430, is only an advance payment on accoount of the
respective share of each partner."
Such is the case now before us. It appears from the record that the liabilities exceed
the assets of the estate of Samuel William Allen and that his widow, by her own
admission, had not contributed any property to the marriage. Wherefore, it is
unlawful, in the present case, to grant the support, having the character of an
advance payment to be deducted from the respective share of each partner, when
there is no property to be partitioned, lacks the legal basis provided byarticle 1430.
26)

Santero v. CFI of Cavite, 153 SCRA 728

Petitioners argue that private respondents are not entitled to any allowance since
they have already attained majority age, two are gainfully employed and one is
married as provided for under Sec. 3 Rule 83, of the Rules of Court. In this
connection, the question of whether the private respondents are entitled to
allowance or not concerns only the intestate estate of the late Pablo Santero and
not the intestate estates of Pascual Santero and Simona Pamuti, parents of their
late legitimate son Pablo Santero. The reason for this is Art. 992 of the New Civil
Code which states that "An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child."
The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but
Arts. 290 and 188 of the Civil Code reading as follows:
Art. 290. Support is everything that is indispensable for sustenance, dwelling,
clothing and medical attendance, according tothe social position of the family.
Support also includes the education of the person entitled to be supported
until he completes his education or training for some profession, trade or
vocation, even beyond the age of majority.
Art. 188.
From the common mass of property support shall be given to the
surviving spouse and to the children during the liquidation of the inventoried
property and until what belongs to them is delivered; but from this shall be
deducted that amount received for support which exceeds the fruits or rents
pertaining to them.
The fact that private respondents are of age, gainfully employed, or married is of no
moment and should not be regarded as the determining factor of their right to
allowance under Art. 188. While the Rules of Court limit allowances to the widow
and minor or incapacitated children of the deceased, the New Civil Code gives the
surviving spouse and his/her children without distinction. Hence, the private
respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are
entitled to allowances as advances from their shares in the inheritance from their
father Pablo Santero. Since the provision of the Civil Code, a substantive law, gives
the surviving spouse and to the children the right to receive support during the
liquidation of the estate of the deceased, such right cannot be impaired by Rule 83

Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with
respect to "spouse," the same must be the "legitimate spouse" (not common-law
spouses who are the mothers of the children here).
27)

Concepcion Jocson de Hilado v. Nava, 69 Phil 1 (1939)

The controlling issue here raised is whether or not the lower court has the power to
annul, in the intestate proceedings, a contract of lease executed by the
administratrix without its intervention. Appellant maintains that it has no such
power, and that the contract can only be annulled in a separate, independent
proceeding.
The contract here in question being a mere act of administration, could validy be
entered into by the administratrix within her powers of administration, even without
the court's previous authority. And the court had no power to annul or invalidate the
contract in the intestate proceedings wherein it had no jurisdiction over the person
of the lessee. A separate ordinary action is necessary to that effect.
28)

San Diego v. Nombre, 11 SCRA 165 (1964)

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
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.t
On 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.
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.
Lease has been considered an act of administration. 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.
29)
30)

Jaroda v. Cusi Jr., 28 SCRA 1008 (1969)

Garcia v. Escudero, 43 Phil 437

Defendant here is the administrator of estate. Plaintiffs are asking defendant to

render an accounting.
3. The trial court erred in holding that the defendant was found to render an
account of the fruits of the coconut lands and liable for their value, notwithstanding
the fact that those lands were seized and held by the revolutionists in Dolores
during the period from February 24, 1896, to January 1, 1902, and notwithstanding
the fact that said properties had been taken from his administration and control.
4. The trial court erred in holding that the defendant was bound to render an
account of the products of said coconut lands covering the period from January 1,

1902, to August 15, 1906, and in disapproving the account rendered, covering this
period.
-Coming to the third error, it refers to the order of the court requiring the defendant
to render an account of the products of the coconut lands from February 24, 1896,
to January 1, 1902. The evidence shows that those coconut lands were seized by the
Philippine revolutionists in the year 1899 and that in 1902 they were a forest. The
Philippine Revolution lasted, practically, during the whole period from 1896 to 1902,
and the defendant, residing as he was, in a town far away from the coconut lands,
could not, as he testified, go to the lands to gather their fruits, and thus he got
none, according to his testimony. We hold that the defendant should be relieved
from the obligation to render the account mentioned in this assignment of error.
With regard to the accounts referred to in the fourth assignment of error, which
pertain to the period from January 1, 1902 to August 15, 1906, the defendant says
in his statement of accounts that in 1902 and 1903 the fruit of the coconut trees
hardly covered the small expenses; that in 1904 and 1905, they began to yield
something but very little. It not having been proven that in those periods the
coconut lands produced anything to be accounted for, we find the report made by
the defendant sufficient on th
31)

Nicolas v Nicolas, 63 Phil 332 (1936)

As to the items 3, 5, 6 and 9 under the heading "III Payments", consisting in

"Money advanced to Attorney Bartolome Domingo, P400", "Partial payment of the
debt of the deceased in favor of Miguel Julian, P105.10", "Partial payment to
Commissioner Gregorio Gabriel, P100", and "Expenses during the anniversary, of
the deceased, P36.50", we are of the opinion that the court a quo correctly rejected
them on the ground that they had not been authorized by said court and because
they had already been discussed in Judge Buenaventura Ocampo's order of
November 14, 1933, from which no appeal was taken. Item 9 thereof, consisting in
expenses incurred by the appellant on the occasion of the anniversary of the death
of the deceased, amounting to P36.50, cannot be considered a part of the funeral
expenses nor treated as the erection of a mausoleum which forms part of the
sepulture of the deceased, because it bears no relation to the funeral.
With respect to the other expenses and fees which the ex-administrator-appellant
seeks to collect and which the lower court, rejected, the law only authorizes the
administrator to collect for his services as such the sum of P4 for every day actually
and necessarily spent by him in the administration and care of the estate of a
deceased person, not for every act or task he might perform, even if it were to take
only a few minutes to do so, as indicated by the nature of the great majority of the
task performed by him, for each and every one of which he seeks to collect P4.
Therefore this court is of the opinion that the 18 days granted by the lower court to
the ex-administrator-appellant as actually and necessarily spent by him in the
performance of his duties, at P4 a day, are reasonable

32)

Uy Tioco v. Imperial, 53 Phil 802 (1928)

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.
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.
33)

Dacanay v. Hernandez, 53 Phil 824 (1928)

As will be seen, all of the fees relate to services rendered for the benefit of the
administrator himself and for that of the other natural children of Justiniano
Dacanay and not for the benefit of the estate.
"The estate cannot be held liable for the costs of counsel fees arising out of
litigation between the beneficiaries thereof among themselves, or in the protection
of the interest of a particular persons" (Woerner on Administration, 2d ed., sec. 516,
and authorities there cited). It is true that an administrator may employ competent
counsel on questions which affects his duties as administrator and on which he is in
reasonable doubt and that reasonable expenses for such services may be charged
against the estate subject to the approval of the court. But such is not the case
here. In this case the administrator deliberately and knowingly resorted to falsified
documents for the purpose of defrauding the legitimate heirs of the deceased and
through his own breach of trust, brought on the litigation for which he now demands
reimbursement for counsel fees. We know of no legal authority for such
reimbursement in these circumstances. The claim for P6,175 is therefore disallowed.
34)

Lacson v. Reyes, 182 SCRA 729 (1990)

It is pointed out that an attorney who is concurrently an executor of a will is barred

from recovering attorney's fees from the estate.
The rule is therefore clear that an administrator or executor may be allowed fees for
the necessary expenses he has incurred as such, but he may not recover attorney's
fees from the estate. His compensation is fixed by the rule but such a compensation
is in the nature of executor's or administrator's commissions, and never as

attorney's fees. In one case, 18 we held that "a greater sum [other than that
established by the rule] may be allowed 'in any special case, where the estate is
large, and the settlement has been attended with great difficulty, and has required
a high degree of capacity on the part of the executor or administrator.'" 19 It is also
left to the sound discretion of the court. 20 With respect to attorney's fees, the rule,
as we have seen, disallows them. Accordingly, to the extent that the trial court set
aside the sum of P65,000.00 as and for Mr. Serquina's attorney's fees, to operate as
a "lien on the subject properties," 21 the trial judge must be said to have gravely
abused its discretion (apart from the fact that it never acquired jurisdiction, in the
first place, to act on said Mr. Serquina's "motion for attorney's fees").
The next question is quite obvious: Who shoulders attorney's fees? We have held
that a lawyer of an administrator or executor may not charge the estate for his fees,
but rather, his client. 22 Mutatis mutandis, where the administrator is himself the
counsel for the heirs, it is the latter who must pay therefor.
35)

Rosenstock v. Elser, 48 Phil 708 (1925)

In other words the character and class of the work which devolves upon the
executor is of a very different type and nature now than at the time of his
appointment. Although by mutual consent his compensation was fixed at P1,0000
per month at the time of his appointment that was not valid or binding contract
continuous throughout the whole administration of the estate. It was always subject
to change and the approval of the court and to either an increase or decrease as
conditions might warrant. At all times the compensation of the probate court.
36)

Joson v. Joson, 2 SCRA 83

The issues now posed by appellants are: (1) Is the duty of an administrator to make
an accounting of his administration a mere incident which can be avoided once the
estate has been settled?; (2) Are the proceedings deemed terminated by the mere
execution of an extrajudicial partition of the estate without the necessity of having
the accounts of the administrator heard and approved by the court?; and (3) Is the
administrator ipso facto relieved of his duty of proving his account from the moment
said partition has been executed? Appellants answer these questions in the
negative with the argument that if the contrary is to be upheld as was done by the
trial court the same would be contrary to the express provisions of our rules relative
to the duties of a judicial administrator. Hence, they argue, the trial court committed
an error in closing the estate in disregard of the accounts submitted by the
administrator.
We find merit in this contention. To begin with, Section 1 of Rule 86 categorically
charges an administrator "with the whole of the estate of the deceased which has
come into his possession at the value of appraisement contained in the inventory;
with all the interest, profit, and income of such an estate; and with the proceeds of
so much of the estate as is hold by him, at the price at which sold." Section 8 of the
same rule imposes upon him the duty to render an account of his administration
within one year from his appointment, unless the court otherwise directs, as well as
to render such further accounts as the court may require until the estate is fully

settled. Section 10 likewise provides that before an account of the administrator is

allowed notice shall be given to all persons interested of the time and place of
examining and allowing the same. And finally Section 9 expressly directs that the
court shall examine the administrator upon oath with respect to every matter
relating to his account except when no objection is made to the allowance of the
account and its correctness is satisfactorily established by competent testimony.
It thus appears that the duty of an administrator to render an account is not a mere
incident of an administration proceeding which ran be waived or disregarded when
the same is terminated, but that it is a duty that has to be performed and duly
acted upon by the court before the administration is finally ordered closed and
terminated. Here the administrator has submitted his accounts for several years not
only motu proprio but upon requirement of the court, to which accounts the heirs
have seasonably submitted their opposition. And when the administrator moved the
court to close the proceedings and relieve him of his administration and of his
accounts, the heirs who objected thereto objected likewise to the closing of the
proceedings invoking their right to be heard but the court ignored their opposition
and granted the motion setting forth as reasons therefor what we quoted in the
early part of this decision. Verily, the trial court erred in acceding to the motion for
in doing so it disregarded the express provisions of our rules relative to the
settlement of accounts of a judicial administrator.

The fact that all the heirs of the estate have entered into an extrajudicial settlement
and partition in order to put an end to their differences cannot in any way be
interpreted as a waiver of the objections of the heirs to the accounts submitted by
the administrator not only because to so hold would be a derogation of the
pertinent provisions of our rules but also because there is nothing provided in said
partition that the aforesaid accounts shall be deemed waived or condoned. While
the attitude of the heirs in concluding said extrajudicial settlement is plausible and
has contributed to the early settlement of the estate, the same cannot however be
considered as release of the obligation of the administrator to prove his accounts.
This is more so when, according to the oppositors, the administrator has committed
in his accounts a shortage in the amount of P132,600.00 which certainly cannot just
be brushed aside by a mere technicality.
37)

Philippine Trust Co. v. Luzon Surety, 2 SCRA 122 (1951)

Appellant's contention that the probate court, ex proprio motu, cannot order the
confiscation or forfeiture of an administrator's bond, is clearly without merit.
Whatever may be the rule prevailing in other jurisdictions, in ours probate court is
possessed with an all-embracing power not only in requiring but also in fixing the
amount, and executing or forfeiting an administrator's bond. The execution or
forfeiture of an administrator's bond, is deemed be a necessary part and incident of
the administration proceedings as much as its filing and the fixing of its amount.
The rule, therefore, is that the probate court may have said bond executed in the
same probate proceeding.

Moreover, the condition of the administrator's bond in question is that Francis L.

Picard shall faithfully execute the orders and decrees of the court; that if he did so,
the obligation shall become void, otherwise it shall remain in full force and effect. In
having been established that Picard disbursed funds of the estate without authority,
the conclusion follows that he had and his surety became bound upon the terms of
their bond.
Appellant also contends that it was not proper for the lower court to order the
confiscation of its bond because no prejudice or injury to any creditor, heir or other
interested person has been proved. This is also without merits. According to the
record, the claims against the estate filed by Antonio Gardiner and Jose Teruel for
the sum of P200.00 and P3,205.00, respectively, were approved by the probate
court but the same have remained unpaid because of lack of funds.
Finally, appellant claims that it had been released from liability as surety because it
received no notice of the proceedings for the determination of the accountability of
the administrator. This contention we also find to be untenable.
From the nature of the obligation entered into by the surety on an administrator's
bond which makes him privy to the proceedings against his principal he is
bound and concluded, in the absence of fraud and collusion, by a judgment against
his principal, even though said surety was not a party to the proceeding. In the case
of the De Mendoza vs. Pacheco, 64 Phil. 135, the sureties on the administrator's
bond were held liable thereon altho they were not parties to the proceeding against
the administrator, nor were they notified in connection therewith prior to the
issuance of the court order for the confiscation of the bond. Lastly, according to
Section 11, Rule 86 of the Rules of Court, upon the settlement of the account of an
executor or administrator, his sureties "may upon application, be admitted as a
party to such accounting." The import of this provision is that the sureties are not
entitled to notice but may be allowed to intervene in the settlement of the accounts
of the executor or administrator if they ask for leave to do so in due time.
38)

Dela Cruz v. Camon, 16 SCRA 886 (1966)

he administrator of the estate moved the court for an order to direct Emilio Camon
to pay the estate's two-forths share of the rentals on Hacienda Rosario for the crop
years 1948-1949 through 1960-1961, viz: on the sugar land, P62,065.00; and on the
rice land, P2,100.00. On December 3, 1962, Emilio Camon challenged the probate
court's jurisdiction over his person. The court ruled that the demand for rentals
cannot be made "by mere motion by the administrator but by independent action."
The administrator appealed.
The jurisdiction of the Court of First Instance of Negros Occidental over the subject
matter herein is beyond debate. The organic act creating courts of first instance,
amongst others, allocates within its jurisdictional boundaries "all cases in which the
demand, exclusive of interest, or value of property in controversy, amounts to more
than ten thousand pesos."2 But here, the court sits as a probate court. Said court is
primarily concerned with the administration, liquidation and distribution of the

estate. For these purposes, property in the hands of the estate's administrator
comes within the power of the probate court.
With the foregoing as parting point, let us look at the administrator's claim for
rentals allegedly due. The amount demanded is not, by any means, liquidated.
Conceivably, the lessee may interpose defenses. Compromise, payment, statute of
limitations, lack of cause of action and the like, may be urged to defeat the
administrator's case. Here, appellee's opposition to the motion served a warning
that at the proper time he will set up the defense that the administrator, as
attorney-in-fact of the declared heirs, had theretofore sold the estate's two-fourths
share in Hacienda Rosario together with "all the rights, title and interest (including
all accrued rents) that said heirs had inherited from the said deceased." Appellant
administrator in his reply to the opposition admits the fact of sale of the land, but
not of the rentals due. Accordingly, the right to collect the rentals is still in a fluid
state. That right remains to be threshed out upon a full-dress trial on the merits.
Because of all of these, the money (rentals) allegedly due is not property in the
hands of the administrator; it is not thus within the effective control of the probate
court. Neither does it come within the concept of money of the deceased
"concealed, embezzled, or conveyed away", which would confer upon the court
incidental prerogative to reach out its arms to get it back and, if necessary, to cite
the possessor thereof in contempt. 3 At best that money is debt to the estate not
against the estate. Recovery thereof, we are persuaded to say, should be by
separate suit commenced by the administrator.4 With reason, because of the
absence of express statutory authorization to coerce the lessee debtor into
defending himself in the probate court. 5 And, we are confronted with the unyielding
refusal of appellee to submit his person to the jurisdiction of the probate court.
By no means may it be said that this is untrodden ground. Paula vs. Escay, et al.,
teaches that: "When the demand is in favor of the administrator and the party
against whom it is enforced is a third party, not under the court's jurisdiction, the
demand can not be by mere motion by the administrator, but by an independent
action against the third person."6 The line drawn in the Escay case gives us a correct
perspective in the present. The demand is for money due allegedly for rentals.
Camon is a third person. Hence, the administrator may not pull him against his will,
by motion, into the administration proceedings. We are fortified in our view by the
more recent pronouncement of this court7 that even "matters affecting property
under judicial administration" may not be taken cognizance of by the court in the
course of intestate proceedings, if the "interests of third persons are prejudiced"
(Cunanan vs. Amparo, 80 Phil. 229, 232).1wph1.t
39)

Quirino v. Gorospe, 169 SCRA 702 (1989)

The claim for attorney's fees of intervenor Jesus T. David is for services rendered for
the benefit of Doa Carmen Castellvi, and not for the benefit of Don Alfonso
Castellvi or his estate. As discussed earlier, only claims which could have been
enforced against the deceased in his lifetime are allowed to be presented against
his estate, with the exception of funeral expenses, expenses for the last sickness 3
and administration expenses in the ordinary course thereof. 4

As to the alleged attachment and levy of Doa Carmen's alleged administratrix' fees
and share in the estate of Don Alfonso Castellvi, the same cannot be given force
and effect in the special proceedings for the settlement of Don Alfonso's estate. It
must be stressed that the subject of settlement in this case is not the estate of
Doa Carmen Castellvi. For intervenor to insist on enforcing in this proceeding his
claim against Doa Carmen's alleged fees as administratrix and share in the estate
of Don Alfonso Castellvi, would be irregular and untenable. It should be borne in
mind that the respondent court is one of limited jurisdiction, and it has no authority
to determine as to who are the heirs of Don Juan Castellvi and/or decide the claims
or demands which may be properly paid out of the funds of the estate of Doa
Carmen Castellvi. Such issues have to be determined in separate proceedings.
For this Court to allow in this proceeding which is for the settlement of the estate of
Don Alfonso Castellvi the enforcement of the claim of David against Doa Carmen's
alleged share in the estate of Don Alfonso Castellvi, would amount to summarily
declaring Doa Carmen an heir of Don Alfonso, without giving the other heirs or
claimants to the latter's estate an opportunity to oppose the same. Moreover,
whatever fees Doa Carmen might have earned during her lifetime as
administratrix of the estate of Don Alfonso Castellvi should go to her estate. Hence,
whatever claim herein intervenor has against the deceased Doa Carmen Castellvi,
should be presented before the court with jurisdiction in settling her estate.
Intervenor cannot resort to a short cut and present his claim directly to this Court to
suit his own end and convenience thereby brushing aside the settled rules of
applicable procedure.
-As discussed earlier, Natividad Castellvi-Raquiza and Doa Carmen Castellvi (as
administratrix of the estate of Don Alfonso Castellvi) had given their conformity to
the award of attorney's fees to Atty. Mendoza. Petitioner who now is acting as
special administrator of the estates of Natividad Castellvi-Raquiza and Carmen
Castellvi is estopped from questioning said award.
Insofar as payment of service fees to Exequiel Floro, the same was allowed for
services rendered by claimant for the benefit of the estate of Don Alfonso Castellvi
and the same falls under the category of "administration expense" which may be
paid out of the finds of the estate. Moreover, the heirs of Don Alfonso Castellvi had
dropped their opposition to said claim, thus, they are barred from questioning the
same at this stage.
41) Aguas v. Lllemos, 5 SCRA 959 (1962)
42) Melgar v Buenviaje, 179 SCRA 196 (1989)
The sole issue in the instant case is whether or not the Court of First Instance has
the power to entertain a suit for damages arising from the
As aforestated, what was originally filed was a complaint for damages against
petitioners herein, who are the children and surviving forced heirs of the deceased

Felicidad Balla, owner and operator of the passenger bus "FUSO" which allegedly
caused the death of the deceased Fabian Prades.
Under Section 5 Rule 86 of the Rules of Court, actions that are abated by death are:
(1) All claims for money against the decedent, arising from contract, express or
implied, whether the same be due, not due or contingent; (2) All claims for funeral
expenses and expenses for the last sickness of the decedent; and (3) Judgments for
money against the decedent (Aguas v. Llemos, 5 SCRA 959 [1962]). It is evident
that the case at bar is not among those enumerated. Otherwise stated, actions for
damages caused by the tortious conduct of the defendant survive the death of the
latter.
The action can therefore be properly brought under Section 1, Rule 87 of the Rules
of Court, against an executor or administrator. The rule provides:
Section 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the state, or
to enforce a lien thereon, and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
The point of controversy is however on the fact that no estate proceedings exist for
the reason that her children had not filed any proceedings for the settlement of her
estate, claiming that Balla left no properties (Rollo, p. 6).
Thus, while petitioners may have correctly moved for the dismissal of the case and
private respondents have forthwith corrected the deficiency by filing an amended
complaint, even before the lower court could act on petitioner's motion for
reconsideration of the denial of their motion to dismiss, the action under Section 17
of Rule 3 of the Rules of Court, which allows the suit against the legal representative
of the deceased, that is, the executor or administrator of his estate, would still be
futile, for the same reason that there appears to be no steps taken towards the
settlement of the estate of the late Felicidad Balla, nor has an executor or
administrator of the estate been appointed. From the statement made by the
petitioners that "many persons die without leaving any asset at all" (Reply to
Respondents' Comment, p. 78; Memorandum for Petitioners, Rollo, p. 5), which
insinuates that the deceased left no assets, it is reasonable to believe that the
petitioners will not take any step to expedite the early settlement of the estate,
judicially or extra-judicially if only to defeat the damage suit against the estate.
(Note however the deceased Balla apparently left the bus). Under the circumstances
the absence of an estate proceeding may be avoided by requiring the heirs to take
the place of the deceased (Javier v. Araneta, 90 Phil. 292 [1951]).
As restated in a much later case, in case of unreasonable delay in the appointment
of an executor or administrator of the estate or in case where the heirs resort to an
extrajudicial settlement of the estate, the court may adopt the alternative of
allowing the heirs of the deceased to be substituted for the deceased

43) Pajarillo v. IAC, 176 SCRA 340

44) Bernardo v. CA, 7 SCRA 367 (1963)
Issue is won the probate court has jurisdiction to determine the validity of the deed
of donation in question and to pass upn the question of ititle or ownership of the
properties?
as a general rule, question as to title to property cannot be passed upon on testate
or intestate proceedings,"1 except where one of the parties prays merely for the
inclusion or exclusion from the inventory of the property, in which case the probate
court may pass provisionally upon the question without prejudice to its final
determination in a separate action.2 However, we have also held that when the
parties interested are all heirs of the deceased, it is optional to them to submit to
the probate court a question as to title to property, and when so submitted, said
probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil.
561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the
parties, matters affecting property under judicial administration may be taken
cognizance of by the court in the course of intestate proceeding, provided interests
of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).
In the light of this doctrine, may it be said correctly that the trial court as well as the
Court of Appeals erred in upholding the power of the probate court in this case to
adjudicate in the testate proceedings, the question as to whether the properties
herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena
Reyes, or to the deceased husband exclusively?
At the outset, let it be clarified that the matter at issue is not a question of
jurisdiction, in the sense advanced by appellants that the trial court had completely
no authority to pass upon the title to the lands in dispute, and that its decision on
the subject is null and void and does not bind even those who had invoked its
authority and submitted to its decision because, it is contended, jurisdiction is a
creature of law and parties to an action can not vest, extend or broaden it. If
appellants' contention is correct, then there can be no exception to the nojurisdiction theory. But as has been stated in the case of Cunanan v.
Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason:
"Determination of title to property is within the jurisdiction of Courts of First
Instance. The responding Soriano's objection (that the probate court lacked
jurisdiction to order the delivery of the possession of the lots to the estate) relates
exclusively to the procedure, which is distinct from jurisdiction. It affects only
personal rights to a mode of practice (the filing of an independent ordinary action)
which may be waived". Strictly speaking, it is more a question of jurisdiction over
the person, not over the subject matter, for the jurisdiction to try controversies
between heirs of a deceased person regarding the ownership of properties alleged
to belong to his estate, has been recognized to be vested in probate courts. This is
so because the purpose of an administration proceeding is the liquidation of the
estate and distribution of the residue among the heirs and legatees. Liquidation
means determination of all the assets of the estate and payment of all the debts
and expenses.3Thereafter, distribution is made of the decedent's liquidated estate

among the persons entitled to succeed him. The proceeding is in the nature of an
action of partition, in which each party is required to bring into the mass whatever
community property he has in his possession. To this end, and as a necessary
corollary, the interested parties may introduce proofs relative to the ownership of
the properties in dispute. All the heirs who take part in the distribution of the
decedent's estate are before the court, and subject to the jurisdiction thereof, in all
matters and incidents necessary to the complete settlement of such estate, so long
as no interests of third parties are affected. 4
In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved whether they belong to the conjugal
partnership or to the husband exclusively. This is a matter properly within the
jurisdiction of the probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be
distributed among his heirs who are all parties to the proceedings, including, of
course, the widow, now represented because of her death, by her heirs who have
been substituted upon petition of the executor himself and who have appeared
voluntarily. There are no third parties whose rights may be affected. It is true that
the heirs of the deceased widow are not heirs of the testator-husband, but the
widow is, in addition to her own right to the conjugal property. And it is this right
that is being sought to be enforced by her substitutes. Therefore, the claim that is
being asserted is one belonging to an heir to the testator and, consequently, it
complies with the requirement of the exception that the parties interested (the
petitioners and the widow, represented by dents) are all heirs claiming title under
the testator.
Petitioners contend additionally that they have never submitted themselves to the
jurisdiction of the probate court, for the purpose of the determination of the
question of ownership of the disputed properties. This is not borne by the admitted
facts. On the contrary, it is undisputed that they were the ones who presented the
project of partition claiming the questioned properties as part of the testator's
asset. The respondents, as representatives or substitutes of the deceased widow
opposed the project of partition and submitted another. As the Court of Appeals
said, "In doing so all of them must be deemed to have submitted the issue for
resolution in the same proceeding. Certainly, the petitioners can not be heard to
insist, as they do, on the approval of their project of partition and, thus, have the
court take it for granted that their theory as to the character of the properties is
correct, entirely without regard to the opposition of the respondents". In other
words, by presenting their project of partition including therein the disputed lands
(upon the claim that they were donated by the wife to her husband), petitioners
themselves put in issue the question of ownership of the properties which is well
within the competence of the probate court and just because of an opposition
thereto, they can not thereafter withdraw either their appearance or the issue from
the jurisdiction of the court. Certainly, there is here a waiver where the parties who
raise the objection are the ones who set the court in motion. 5 They can not be
permitted to complain if the court, after due hearing, adjudges question against
them.6

Finally, petitioners-appellants claim that appellees are estopped to raise the

question of ownership of the properties involved because the widow herself, during
her lifetime, not only did not object to the inclusion of these properties in the
inventory of the assets of her deceased husband, but also signed an extra-judicial
partition of those inventoried properties. But the very authorities cited by appellants
require that to constitute estoppel, the actor must have knowledge of the facts and
be appraised of his rights at the time he performs the act constituting estoppel,
because silence without knowledge works no estoppel. 7 In the present case, the
deceased widow acted as she did because of the deed of donation she executed in
favor of her husband not knowing that such deed was illegal, if inter-vivos, and
ineffectual if mortis-causa, as it has not been executed with the required formalities
similar to a will.
45) Guanco v. National Bank, 54 Phil 244 (1930)
After Guanco's death, the administrator of his estate, on October 5, 1928, filed a
petition in the intestate proceedings asking that the Court of First Instance issue an
order requiring the president or manager of the bank to appear in court for
examination in regard to the 250 shares of the Binalbagan Estate. Court ordered the
manager to appear before court but managener did not appear. Later, court also
ordered int eh same porceedings and without trial, that the manager deliver the 250
shares to administrator. Bank now appeals allegeing that court acted in excess of jd
in delivering the shares under Section 709.
This contention is entirely correct. The section in question reads as follows:
SEC. 709. If an executor or administrator, heir, legatee, creditor, or other person
interested in the estate of a deceased person complains to the court having
jurisdiction of the estate, that a person is suspected of having concealed,
embezzled, or conveyed away any of the money, goods, or chattels of the
deceased, or that such person has in his possession, or has knowledge of any deed,
conveyance, bond, contract, or other writing which contains evidence of, or tends to
disclose the right, title, interest, or claim of the deceased to real or personal estate,
or the last will and testament of the deceased, the court may cite such suspected
person to appear before it, and may examine him on oath on the matter of such
complaint; if the person so cited refuses to appear and answer such examinations,
or to answer such interrogatories as are put to him, the court may, by warrant,
commit him to jail or prison of the province, there to remain in close custody until
he submits to the order of the court; and such interrogatories and answers shall be
in writing and signed by the party examined, and filed in the clerk's office.
As will be seen, the section quoted only provides a proceeding for examining
persons suspected of having concealed, embezzled, or conveyed away property of
the deceased or withholds information of documentary evidence tending to disclose
rights or claims of the deceased to such property or to disclose the possession of his
last will and testament. The purpose of the proceeding is to elicit evidence, and the
section does not, in terms, authorize the court to enforce delivery of possession of
the things involved. To obtain the possession, recourse must therefore generally be

had to an ordinary action. It has so been held in the cases of Chanco vs. Madrilejos
and Abreu (12 Phil., 543) and Alafriz vs. Mina (28 Phil., 137).
In issuing the order from which the appeal has been taken, the court below relied
largely on a dictum in the Alafriz case that "there may be cases, where papers and
documentary evidence of ownership of property are held by a third person
belonging to the estate of a deceased person, in which it would be perfectly proper
to the court to order the same turned over to the court." That may be true; it might,
for instance, apply to the possession of a will. But in the same case, the court also
said that "the court had no right to deprive her (the appellant) of her evidence
relating to the property, until the question of ownership had been settled."
That is practically this case. The bank maintains that the pledge of the 250 shares is
still in force. It may have documentary evidence to that effect, and it was not under
obligation to turn such evidence over to the court or to a third party, on the strength
of a citation under section 709. The possession of the certificates of the shares in
question is a part of that evidence and it is obvious that if they are surrendered to
the administrator of the estate and possibly disposed of by him, the bank will lose
its day in court, and its rights can only be determined in a corresponding action.
46) Alafriz v Mina, 28 Phil 137 (1914)
In support of the first assignment of error, the appellant contends that there is no
law justifying the order made by the lower court, citing her to appear and to declare
concerning the question whether she had property belonging to the estate. She also
contends that the administrator should have proceeded by an ordinary action, if he
believed that she had in her possession property of the estate.
In answer to the contention of the appellant that there is no law justifying the
citation of the defendant in a testamentary proceeding, we find that section 709 of
the Code of Procedure in Civil Actions (Act No. 190) expressly authorizes the order of
which complaint is made. Section 709 provides:
If any executor or administrator, heir, legatee, creditor, or other person interested in
the estate of a deceased person complains to the court having jurisdiction of the
estate, that a person is suspected of having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the deceased, or that such person has
in his possession, or has knowledge of any period, conveyance, bond, contract, or
other writing which contains evidence of, or tends to disclose the right, title, interest
or claim of the deceased to real or personal estate, or the last will and testament of
the deceased, the court may cite such suspected person to appear before it, and
may examine him on oath on the matter of such complaint; if the person so cited
refuses to appear and answer such examination, or to answer such interrogatories
as are put to him, the court may, by warrant, commit him to the jail or prison of the
province, there to remain in close custody until he submits to the order of the court;
and such interrogatories and answers shall be in writing and signed by the party
examined, and filed in the clerk's office.

We think said section (709) fully justifies the order made by the lower court citing
the appellant to appear, and that no error was committed in making said order.
-There is nothing in section 709 which justifies the orders complained of in the
second and third assignments of error. Said section (709) simply provides that "the
court may cite such suspected person to appear before it and may examine him on
oath on the matter of such complaint." There is nothing in the section which
authorizes the court to take possession of the property, if any should be found in
the possession of the defendant or of the person cited. If, upon the hearing, there
was good reason for believing that the person cited had property in his or her
possession belonging to the estate, then it was the duty of the administrator to
proceed by an ordinary action to recover possession of the same. There may be
cases, where papers and documentary evidence of ownership of property are held
by a third person belonging to the estate of a deceased person, in which it would be
perfectly proper for the court to order the same turned over to the court. We do not
now, however, attempt in any way to indicate what would be such a condition nor
even to finally decide that such a condition might exist. In the present case the
defendant was entitled to retain possession of the pawn ticket, until the question of
the ownership of the jewels should be determined in the proper way. The court had
no right to deprive her of her evidence relating to the property, until the question of
ownership had been settled.
47) Heirs of Gregoire v. Baker, 51 Phil 75 (1927)
Lower court judge authorized the administrator to exclude a later parcel of land
from inventory of assets.
The precise remedy open to the appellants in the predicament above described is
clearly pointed pout in section 713 of our Code of Civil Procedure, which reads as
follows:
When there is a deficiency of assets in the hands of an executor or administrator to
pay debts and expenses, and when the deceased person made in his life-time such
fraudulent conveyance of such real or personal estate or of a right or interest
therein, as is stated in the preceding section, any creditor of the estate may, by
license of the court, if the executor or administrator has not commenced such
action, commence and prosecute to final judgment, in the name of the executor or
administrator, an action for the recovery of the same and may recover for the
benefit of the creditors, such real or personal estate, or interest therein so
conveyed. But such action shall not be commenced until the creditor files in court a
bond with sufficient surety, to be approved by the judge, conditioned to indemnify
the executor or administrator against the costs of such action. Such creditor shall
have a lien upon the judgment by him so recovered for the costs incurred and such
other expenses as the court deems equitable.
The remedy of the appellants is, therefore, to indemnify the administrator against
costs and, by leave of court, to institute an action in the name of the administrator

to set aside the assignment or other conveyance believed to have been made in
fraud of creditors.
For the appellants it is contended that, inasmuch as no appeal was taken from the
order of October 7, 1925, directing the administrator to include the land in question
in the inventory, said order became final, with the result that the appealed order of
March 5, 1926, authorizing the exclusion of said property from the inventory, should
be considered beyond the competence of the court. This contention is untenable.
Orders made by a court with reference to the inclusion of items of property in the
inventory or the exclusion of items therefrom are manifestly of a purely
discretionary, provisional, and interlocutory nature and are subject to modification
or change at any time during the course of the administration proceedings. Such
order in question not final in the sense necessary to make it appealable. In fact we
note that the appealed order was expressly made without prejudice to the rights of
the creditors to proceed in the manner indicated in the provision above quoted from
the Code of Civil Procedure. lawphil.net
The order appealed from not being of an appealable nature, it results that this
appeal must be dismissed, and it is so ordered, with costs against the appellants.
48) Velasquez v. George, 125 SCRA 456 (1983)
Villanueva further contends that the plaintiffs-appellants have no capacity to file the
complaint because the general rule laid down in Rule 87, Section 3 of the Rules of
Court states that only the administrator or executor of the estate may bring actions
of such nature as the one in the case at bar. The only exception is when the
executor or administrator is unwilling or fails or refuses to act, which exception
according to the mortgagee-appellee does not apply in the present case.
-We also find without merit the defendant-mortgagee's contention that the proper
party to file the complaint is the administrator of the estate of Benjamin George.
The administrator, Andres Muoz, is the same person charged by the plaintiffsappellants to have voted in the board of directors without securing the proper
authority from the probate court to which he is accountable as administrator.
In Ramirez v. Baltazar (24 SCRA 918), we ruled that "since the ground for the
present action to annul the aforesaid foreclosure proceedings is the fraud resulting
from such insidious machinations and collusion in which the administrator has
allegedly participated, it would be far fetched to expect the said administrator
himself to file the action in behalf of the estate. And who else but the heirs, who
have an interest to assert and to protect, would bring the action? Inevitably, this
case should fall under the exception, rather than the general rule that pending
proceedings for the settlement of the estate, the heirs have no right to commence
an action arising out of the rights belonging to the deceased." The case at bar falls
under such an exception.
RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE
Cases:

5) Timbol v. Cano 1 SCRA 1271

6) Jaucian v. Qeurol, 38 Phil
7) Cu Unjieng v. Tiaoqui, 64 Phil
8) Intestate of Januaria Gonzales, 72 Phil 245
9) Echaus v. Blanco, 179 SCRA 704
RULE 89 SALES, MORTGAGES AND OTHER ENCUMBRANCES OF PROPERTY OF
DECEDENT
Cases:
1) Estate of Gamboa v. Florenza, 12 Phil. 191
2) Boaga v. Soler, 2 SCRA 755
3) Vda. De Celis v Vda. De la Santa, 93 Phil 909
4) De Jesus v. De Jesus, 3 SCRA 548
RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE
Cases:
1) Lopez v. Lopez, 68 Phil 227
2) Heirs of Perfecto Santiesban v. Santiesban, 68 Phil 367
3) Solivio v. CA, 183 SCRA 119
4) Salvador v. Sta. Maria, 20 SCRA 604
5) Timbol v. Cano, supra
6) Uriarte v. CFI of Negros Occidental, 33 SCRA 252
RULE 91 ESCHEAT
Cases:
1) Municipal Council of Laguna v. Colegio de San Jose, 65 Phil
2) Republic v. IAC, 148 SCRA 271
3) Vicente Tan v. City of Davao, 166 SCRA 73
4) Bermudo v. CA 55 SCRA 8
5) Republic v. CFI of Manila, 165 SCRA 11
RULE 92 GUARDIANSHIP
Cases:
1) Francisco v. CA 127 SCRA 371

2) Lavides v. City Court of Lucena, 114 SCRA 187

RULE 93 APPOINTMENT OF GUARDIANS
Cases:
1) Encarnacion Lopez Vda. De Baluyot v. Leonor Ines Luciano, 72 SCRA 52
2) Yangco v. CFI of Manila, 21 Phil 184
RULE 94 BONDS OF GUARDIANS
Cases:
1) Delfin Nario v. Philippine American Life Insurance Co., 20 SCRA 434
2) Arroyo v. Jungsay, 34 Phil 589
RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD
Cases:
1) De Pua v. San Agustin, 106 SCRA 7
2) Gonzales v. Ordonez-Benitez, 181 SCRA 401
3) Lindain v. CA, 212 SCRA 725
4) Maneclang v. Baun, 208 SCRA 179
RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS
Cases:
1) Parco v. CA, 111 SCRA 262
2) Cui v. Piccio, 91 Phil 712
RULE 97 TERMINATIONS OF GUARDIANSHIP
Cases:
1) Ypil v. Salas, 89 SCRA 172
RULE 98 TRUSTEES
Cases:
1) Tiangco v. Francisco, 68 Phil 639
2) Roman Catholic Bishop of Jaro v. de la Pea. 26 Phil 144