GR NO.

L-5597, May 31, 1956

ROMAN OZAETA, PETITIONER & APPELLEE ROSE GONZALES, ET ALS., CO-

PETITIONERS & APPELLEES, V.S. MARIA CUARTERO, ET ALS., OPPOSITORS &
APPELLEES SEBASTIAN C. PALANCA, MARCIANA PALANCA & ANGEL C.
PALANCA, OPPOSITORS & APPELLANTS.

DECISION

REYES, A., J.:

This is an appeal from a decision of the Court of First Instance of Manila, allowing the probate of a will
and appointing the petitioner-appellee Roman Ozaeta executor.

The questioned will purports to be that of Carlos Palanca Tanguinlay, a resident of Manila who died in
said city on September 2, 1950, leaving a large estate and three sets of heirs.

Born in China of Chinese parents, Palanca came to the Philippines in 1884 and resided therein the rest
of his life. He died a Filipino citizen. In 1894 he married Cesarea Victorina Gano y Torres, with whom he
begot three children named Marciana, Angel, and Sebastian. Cesarea died in 1907, and one year
thereafter, Palanca lived unmarried with Rosa Gonzales and came to have eight children with her.
While living with Rosa, Palanca also sustained relations with another woman, Maria Cuartero, and by
her he came to have six children.

Realizing in his old age and failing health that lifes end was fast approaching, Palanca made up Ms
mind to legalize his relations with Rosa Gonzales and give their children a good name. And to put
himself right with all his children, legitimate and illegitimate, he also decided to make a will. And so it
was that on April 12, 1945, in a marriage ceremony performed by a Judge of the Court of First Instance
of Manila, Hon. Mamorto Roxas, Palanca took Rosa Gonzales as his wedded wife, and not long
thereafter he engaged the services of a prominent lawyer, Atty. Ramon Diokno, for the drafting of the
will. After conferring several times with Palanca as to what the will should contain, Diokno handed him.
a draft. A day or two later, Palancawho was then living temporarily in the house of petitioner Roman
Ozaeta, his own house having been burned in the battle for tie liberation of Manila sent for his former
employee, Adolfo Gruet, and had him put the draft of will in clean form, telling him to keep the matter
confidential.

Typewriting the will, Gruet made one original and two copies and delivered them all to Palanca
together with the draft. The will is in Spanish and consists of sis typewritten pages correlatively
numbered in letters. Each page is numbered at the top except the first, which is numbered at the
bottom.

As previously agreed, in the morning of May 19, 1945, Palanca, accompanied by Adolfo Gruet, went to
the office of Atty. Ramon Diokno at 114 Sail Rafael St., Manila for the signing of the will. There they
wore joined by Segundo Gonzales, who had been previously requested by Palanca to be one of the
witnesses. Before the signing began, Atty. Rom on Diokno conferred in his private room with Palanca,
reading and explaining to him the entire will. The conference over, Palanca and Atty. Ramon Diokno
came out of the room, followed by the latters son Jose Diokno, who was to be one of the attesting
witnesses to the will, and the three then proceeded to the veranda where they seated .themselves
around a table together with Adolfo Greet and So gun do Gonzales, who had preceded them there.
When all were seated, Atty. Ramon Diokno began by explaining the formalities to be followed in the
signing of the will, and once that was done, Palanca signed its original and two carbon copies page by
page in the presence of the others in the group, namely, Atty. Ramon Diokno, his son Jose, Se gain do
Gonzales, and Adolfo Gruet. Next to sign was Jose Diokno and after him Segundo Gonzales and Adolfo
Gruet in that order. In succession these three affixed their signatures to each and every page of the
original and two carbon copies in the presence of each other, as well as of Palanca and Atty. Ramon
Diokno.

The will nailed the la be President Manuel Roxas as executor, and it would appear that after it was
signed the original was put in a sealed develop and delivered to him. President Roxas, in turn,
entrusted tie envelop to his daughter Ruby, for safekeeping, and the latter put it in her trunk. Their
remained until 1950 when, upon the advice of Atty. J. Chuidian, whom she consulted on what to do
after learning of Polancas death, she got the envelop out and opened it. Her father, President Raxas,
having already died, Ruby sought advice from her uncle, former Judge Mamerto Roxas, and the latter
told her to deliver the will to Justice Roman Ozaota whom the will named executor in default of
President Roxas. Acting on this advice Ruby gave the will to Mrs. Roman Ozaeta three days after
Palancas death.

Designated in the will as substitute executor, Roman Ozaeta, on September 20, 1950, filed a petition in
the Court of First Instance of Manila, asking for the probate of the will, for the issuance to him of letters
of administration, and for his appointment as special administrator pending probate. The petition was
published together with the date set for Its hearing, and thereafter Maria. Cuartero and her six children
filed their opposition, alleging that the will was not executed in accordance with law, that it was
procured by fraud and undue pressure and influence on the part of some of the beneficiaries or some
other person for their benefit, and that the decedents signatures thereon were procured thru fraud
and trickery, the same having been affixed by him without any intention of making the document his
will. Sebastian Palanca, Palancas youngest son by his deceased first wife, also opposed the petition
and, in addition to the grounds alleged by Maria Cuartero and her children, further averred tint the
provisions of the alleged will were unjust and contrary to law and prayed that the petition be denied,
and that he himself be appointed administrator. Rosa Gonzales and her children also appeared and
joined the petition for probate.

After trial, the court rendered a decision allowing the will to probate and appointing.the petitioner
Roman Ozaeta executoro From this decision only Sebastian, Marciana and Angel, all children of the first
marriage, have appealed, the case being elevated to this Court because the value of the estate
exceeds P50,000.

After going over their briefs, we note that appellants do not seriously dispute Palancas signature s .on
the will and that the whole burden of their contention is that the said will could not have been
executed by Palanca on May 19, 1945, and in the manner described by petitioners witnesses., and
that, supposing it to have been so executed, still it should not be allowed because it was allegedly
procured thru fraud and improper pressure and influence and did not comply with the requisites of the
law.

We may state at once that the facts narrated above as to hew the questioned will was prepare d,
signed, and kept are fully established by the evidence. We entertain no doubt that the will was drafted
by Atty. Ramon Diokno at the request of Palanca himself and that once Palanca had the draft he had it
put in clean form by his former employee Adolfo Gruet, Neither do we doubt that the will was in fact
signed on the day and in the manner testified to by all of the three attesting witnesses. They each
gave a detailed and clear account of that proceeding and identified the will presented in court as that
which they and the decedent signed on May 19, 1945 in the law office of Atty. Ramon Diokno. They
likewise identified their own signatures and that of the decedent on every page of the will and stated
that the decedent affixed his signatures in their presence and that. they, themselves affixed theirs in
the presence of the decedent and of each other. Much less is there reason for us to doubt the
testimony of Ruby Roxas that she had had the will in her custody from the time it was entrusted to her
by her father about a month or two after they were liberated in Baguio in April, 1945, up to three days
after the death of the decedent in 1950.

The appellants presented not a single witness who was in a position to deny categorically that a will
was in fact executed by the decedent at the time and in the manner testified to by the attesting
witnesses. As we see It, appellants case is built mainly on surmises, which, even if possible in theory
as pure speculations, may not, in the absence of sufficient factual basis, be allowed to prevail over the
clear., explicit and detailed account of the circumferences surrounding the execution of the will given
by witnesses who were so straight forward on d convincing In their assertions that the trial judge who
heard and saw then testify accepted their testimony without any hesitation.

To support their theory that the will in question was not prepared and executed as testified to by
petitioners witnesses, the appellants, contend, in the first place, that the will could not have been
drafted by Atty, Ramon Diokno because Diokno was once hoard to complain that petitioner Roman
Ozaeta had taken away a client (Palanca) from him, including the work of preparing his will; that
Diokno could not have agreed to draft a will naming a political enemy, ..the late President Roxas,
executor; that the will is couched in poor and even defective Spanish not typical of him who had a
good command of that language; that for its preparation he charged an exhorbitant fee, more than
P30,000, three years after its execution contrary to his usual practice of charging as soon as his work
was finished. And in the second place appellants maintain that it was improbable the will was signed at
the time and place and in the manner already stated above because in May, 1945 Diokno did not
reside or hold office at 114 San Rafael St., Manila, since according to a witness for the appellants, he
was then still staying in the University of Sto. Tomas compound where he and his family had found
refuge during the occupation; that in their testimony, Atty. Ramon Diokno and Adolfo Gruet did not
agree, as to who put the will in clean form; that the testimony of lose Diokno that lie witnessed the
signing of the will on May 19, 1945, is inconsistent with the remarks lie made in the office of Judge
Ceferino de los Santos in the presence of Atty. Binglasan to the effect that the decedent executed no
will in 1945; and, lastly, that the attesting witness Segundo Gonzales was not telling the truth when he
stated that in May, 1945, he had an office in Capitan Pepe Building in Manila and that it was from there
that he was fetched by the decedents son, Carlos Palanca, Jr., for the signing of the will.

As against these claims, we have in the first place Atty. Ramon Dioknos categorical declaration under
oath that it was he who drafted the will in question and that . he actually billed the decedent
P30,000.00 for the preparation of the said will and for his intervention in the signing thereof, although
actually he received only P21,000.00 in deference to the decedents request for a reduction. Atty.
Ramon Diokno also denied the yarn about his having complained that petitioner Roman Ozaeta had
taken away from him his client, Palanca, branding the story a nasty falsehood (tejido de barbaridades,
falsedades), and explained that lie could not have uttered such a complaint because up to the date of
his departure for New York on June 2 5, 1946, he was still Palancas lawyer in several cases, including
his naturalization case. And then It appears that the will was drafted by Diokno long before he went
politically after President Roxas, who became a presidential candidate only. In the early part of 1946,
and, anyway, .we doubt if any practicing lawyer would refuse to draft a will and lose a substantial fee
just because a political enemy is to be therein named as executor. The phraseology of the will may, in
appellants oponion, be defective; but that in Itself Is no sure. indication that it was not authored by
Diokno, who, on his part, explained when confronted with the alleged defects that the will was not
intended as a literary piece.

As to Atty, Ramon Dioknos residence at the time 1133 will was signed, we find that appellants own
witness, Adel Hernandez, gave testimony that in May, 1945, Diokno had his office in 114 San Rafael St,
Manila, and it also appears, that appellants own lawyer Atty. Dinglasan, admitted having received
around that time a court pleading from Atty. Ramon Diokno in which the letters address was given as
114 San Rafael, Manila.

Contrary to appellants clam, we find no contradiction between the testimony of Adolfo Gruet and that
of Atty. Ramon Diokno as to who was the one who put the will in clean and final form, for Atty. Ramon
Diokno did not deny that, as testified to by Gruet, the latter was the one who put the final draft of the
will in clean form.

Jose Diokno admitted saying on one occasion that he did not remember having witnessed a will
executed by the decedent in 1945s but explained that he was confused because he had then in mind a
reformed draft of a will prepared by his father at the request of the decedent in 1947 which was,
however, never signed.
Segundo Gonzales on his part clarified his statement about his having an office in Cap it an Pepe
Building in May, 1945, with the explanation that though he was not a lessee in the real sense, of the
word, he, however, used to frequent a room in tint building which he-considered as his office.

The appellants also argue that if the decedent had really executed the questioned will on May 19,
1945? it is inconceivable that a man of his intelligence would include false statements therein, and
that it is also surprising that properties specifically bequeathed in that will to some of the heirs should
afterwards be disposed of by him in favor of other persons without making the corresponding change
in the will. Appellants beg the first part of this argument, while the other part fails to take account of
the fact that during the lifetime of the testator he retains full ownership and control, including free
disposal, of the properties bequeathed by him in the will, and that a specific device fails or is impliedly
re voiced as to the property conveyed whore the testator subsequent to the execution of a will
voluntarily disposes of the property by absolute conveyance.

Calling attention to the dissimilarity in the watermarks on the different sheets of paper used in the final
draft of the will, as well as to the somewhat thicker ink diffusions in decedents signatures on page 6
when compared with his signatures on the other pages of the will, appelants draw the conclusion that
the will could not have been typewritten or signed in one continuous act. The difference in the
watermarks of the paper used is not denied, but the conclusion drawn therefrom that the paper could
not have come from a single bunch but from different bunches, and therefore the will was not
typewritten in one continuous set, supposing it to be correct, is of no consequence, since there is no
claim here about any page having been substituted. Moreover, the scarcity of paper in those early
days after Liberation may easily account for the use of paper with different watermarks. And the
difference in the thickness of ink diffusion noted by the appellants does not necessarily support their
deduction that the will was not signed in one sitting. As was explained by petitioners expert witness,
the thicker ink diffusion on page 6 is due to the fact that the page is on a paper more porous than the
other sheets used. Indeed, the expert witness for the appellants could not be positive that the last
page of the will and other pages were not signed on the same date. He would even concede the
possibility that the decedent may have signed page 6 ahead of the other pages when his pen was still
very wet, and he corroborates petitioners expert witness on the point that the paper of the last page
was different in kind and porosity from that use for the first five pages. In any event, as this Court
observed in a case, speculations on these matters should give way to the positive declaration of the
attesting witnesses, whose testimony ought to prevail over expert opinions which cannot be
mathematically precise but which, on the contrary, are subject to inherent infirmities. (Roxas vs.
Roxas et al., 48 Off. Gaz., 2177 2182; Vao vs. Vano et al., GR NO. L-6303, June 30, 1954.)

As to the charge that the will was procured thru undue and improper pressure and influence by those
who stood to profit therefrom or by some other person for their benefit, we note that no direct
evidence has been presented to support it. Appellants, however, maintain that direct evidence of
undue influence is not essential; that a contest on the ground of fraud and undue influence may be
waged successfully on circumstantial evidence and that the contestant is entitled to the benefit of all
inferences which may be reasonably and legitimately derived from established facts; and appellants
then offer the theory that after the petitioner had succeeded In convincing the decedentwhom they
picture to be then a very old. man suffering from several ailments besides cataract in both eyes,to
live with him, he (petitioner), with the tolerance and cooperation of Rosa Gonzales and her children,
who were then living with the decedent in petitioners house, instilled fear in his mind and thereafter
controlled all his acts in such a way that he could not but do what he was told and had to sign
whatever papers he was asked to sign. And that, according to appellants, is how. he came to sign the
will In question. But this seems to us to be far-fetched deduction from the established fact that the
decedent was at the time of the execution of t?he will already old and somewhat sickly and living with
Rosa Gonzales and their children in petitioners house. Though appellants would want to make the
court believe that the decedent was already blind at the time the will was alleged, to have been
executed and that he could, therefore, not have read or signed it, we find that the Imputation of
blindness is not witness Ariston Hermano, Atty Dinglasan1 s brother-in-law, both testified that the
decedent had to request then to road for him reports and contracts in 1945 because of his failing
eyesight, neither of them could assure the court that the deceased was in fact blind. On the contrary,
Angel Palanca even stated that his father,, the deceased, was still signing checks in 1945 while Tan
Guan Siu, another witness for the appellants declared that the deceased still had a good sight in July,
1946 and could read-papers by himself in 1949 when lie was already living in his house on Taft
Avenue., It is not denied that the deceased had cataract in both eyes even before 1941 c But Dr. W. H.
Waterous. a disinterested witness who was treating the deceased, testified that the latter s affliction in
the eyes impaired only his distance vision and he could still read inclose-up In.June, 1946 because
his near vision- was still good. Dr. Waterous also stated that the deceased could still see things
around and went unaided to the dark room in-his clinic when he went there for a check-up at that
time. The decedent, though old and suffering from diabetis would appear, to be still in full possession
of his mental faculties and was not so helpless as appellants would picture him to be, and there is no
showing that before, during, and after the execution of the will,, he was not a master of his will but
had to take orders from somebody o Moreover, the will was signed by him In the office of a
distinguished lawyer, who died a respected member of this Court, and without the presence of any the
beneficiaries named therein or of the petitioner himself whom appellants apparently suspect of having
used pressure or influence in favor of the said beneficiaries. It is obvious that the claim that the will
was obtained thru undue influence and improper pressure has no substantial factual basis but is more
a matter of conjecture engendered by suspicion which .the weight of authority regards as insufficient
to sustain a verdict defeating a will on that ground (57 .Am, Jur. 308), It is not enough that .there was
an opportunity to exorcise undue influence or a possibility that it might have been exercised. There
must be substantial evidence tint it was actually exercised. (21 A. L.R. 821 c).

Appellants theory is, furthermore, disproved by decedents failure to revoke or otherwise alter the
questioned will as soon as he stopped out of petitioners house and moved to his own where he led a
free mans life up to five years after the execution of the will in question. This behaviour of the
decedent constitutes a silent ratification of the contents of the impugned will and refutes the claim of
undue influence and improper pressure, even supposing that these circumstances were, duly proved.
(57 Am. Jur. p. 312c)

It is, therefore, our conclusion that the will involved In tills case cannot be disallowed on the ground
that It was procured, thru improper influence or pressure.

Not much need be said on appellants content ion that the legal formalities for the execution of a will,
supposing that the questioned will was really, executed, were not observed In t lie present case.
Appellants do not dispute the decedents testamentary capacity or his knowledge of the language in
which the will was written, and we think that it is beyond cavil, that the signatures of the testator and
of the attesting witnesses appearing thereon are genuine. But appellants contend that the paging of
the will rs defective in tint the first page is numbered, at the bottom and that the will does not contain
an attestation clause.

The object of the law in providing that the pages of a will shall be numbered correlatively in letters
placed on the upper part of each sheet is, as already declared by this Court, to forestall suppression
or substitution of pages (Martir v. Martir, 70 Phil. 89) or to make falsification more difficult,
(Aldaba vs. Roque, 43 Phil. 378.) We cannot conceive how the placing of the number of the page at the
bottom of the sheet might defeat such purpose. And as a matter of fact this Court has already held
that numbering a page of the will at the bottom does not make the will void for that reason. (Aldaba
a vs. Roque, supra.) In the case of Mendoza vs. Pila- pil, 72 Phil. 546, this Court, even held that where
the first page is not numbered but at the bottom thereof there is written the phrase pase a la 2.a
pagina, the will is not for that reason to be declared invalid.

There is no merit in the claim that the will in question does net contain the attestation clause required
by law in that the attestation only appears in Its last paragraph, which purports to be the attestation
clause, and that it was only the decedent who certified, to those matters which the law requires to be
stated therein. The paragraph in question reads:

En testimonio de lo cual, he otorgado esto testament en elidioma castellano, que liablo, leo y
escribo, y lo he promulgado y firmad.o en presencia de todos y cada uno de loo tres testigos quo
 firman conmigo on tod.as las seis paginas do que so compone este testaments, cada uno de
cuyos tostigos lo atestiguaron y firmaron a ml rue go, on mi presencia y en la do cada uno. de
elios, de todo lo cual yo, el testador, y nosotros, los tres testigos abajo firmados, certificamos y
damos fe, on Manila hoy 19 de mayo de 1945.

The latter part of the above paragraph which appellants seem to Ignore or overlook says: x x x de
todo lo cual yo, el testador, y nosotros, los tres testiges abajo firmados, certificamos y damos fe x x x.
This makes it quite clear that it is not only the testator but also the attesting witnesses who have taken
part in the certification of the circumstances required to be stated in the attestation clause. That an
attestation clause of this kind, is legally sufficient has already been decided in the cases of Aldaba vs.
Roque, supra; Cuevas vs. Achacoso, GR NO. L-3497, May 18, 1951; Gonzales vs. Gonzales, GR NO. L-
3272-73, November 29, 1951- Appellants cite the case of Testate Estate of Carlos Gil, 49 Off. Gaz.
1459, In the belief that the decision therein rendered favors their contention. Attention, however,
must be called to the fact that the decision first rendered in that case was on a motion for
reconsideration, subsequently revoked and the Court reverted to the liberal interpretation followed in
the cases of Aldaba vs. Roque, supra, and a long line of other cases.

Finally, appellants object to the appointment of petitioner as executor, alleging that he is unfit to
execute the duties of the trust by reason of want of understanding and integrity. But this allegation Is
gratuitous, for it is not supported by any evidence. On the other hand, we may take judicial mot ice of
tie fact that petitioner is a lawyer of learning aid ability, a former Solicitor General and Secretary of
Justice, and twice a member of the highest court of the land where he served with distinction. With
nothing proved against his character and ability, we must reject the charge that he is unfit for the
position of executor to which the lower court as well as the testator himself has seen fit to name him.

Wherefore, the decision appealed from is affirmed, with costs against the appellants

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., and Endencia, JJ., concur.

G.R. No. L-5436 June 30, 1953

ROMAN OZAETA, ROSA GONZALES VDA. DE PALANCA, JUSTO G. PALANCA, LEONARDA

PALANCA DE ARANAS, SEVERINA G. PALANCA, CARLOS PALANCA, JR., ANTONIO G.
PALANCA, MACARIO G. PALANCA, MILAGROS PALANCA DE FURER, and RAMON G.
PALANCA, petitioners,
vs.
HONORABLE POTENCIANO PECSON, Judge of First Instance of Manila, and BANK OF THE
PHILIPPINE ISLANDS, respondents.

Roxas, Lichauco, Picazo and Manuel S. San Jose for petitioners.

Sebastian C. Palanca in his own behalf.
Sison, Arguego and Sison for investors.

LABRADOR, J.:

The question posed by the petition filed in this case is: Does a probate court commit an abuse of
discretion if, pending an appeal against its order or judgment admitting a will to probate and
appointing as judicial administrator the person named therein as executor, it appoints as special
administrator any person other than the executor named in the will?
The facts giving rise to the question may be briefly summarized as follows: Carlos Palanca died on
September 2, 1950; leaving a will executed by him on May 19, 1945. In the will petitioner Roman
Ozaeta, former associate justice of this Court, was named executor if General Manuel A. Roxas fails
to qualify. Upon Palanca's death, and General Roxas having died previously, petitioner presented a
petition for the probate of the will, at the same time praying that he be appointed special
administrator. Some of the heirs of the decedent opposed this petition, and the court on October 6,
1950, appointed the Philippine Trust Company, a non-applicant and a stranger to the proceedings,
special administrator. On April 20, 1951, the Philippine Trust Company presented a petition to resign
as special administrator on the ground of incompatibility of interest, as it had granted a loan to heir
Angel Palanca, who had pledged to it shares of the Far Eastern University allegedly belonging to the
estate of the deceased. Thereupon petitioner reiterated his previous petition, but the court appointed
Sebastian Palanca, one of the heirs, to take the place of the Philippine Trust Company. The order is
dated June 30, 1951. But on October 23rd, the court rendered an order admitting the will to probate
and appointing petitioner as administrator. The order reads thus:

In view of all the foregoing, the court declares that the document which was executed by the
testator on May 19, 1945 (Exhibit D), is the last will of Carlos Palanca Tanguinlay, and its
probate is hereby allowed. The court appoints the petitioner, Roman Ozaeta, as executor,
with a bond of P50,000 with sufficient sureties and subject to the approval by this court.
Once this decision has become final and upon the approval of the said bond and the taking
of the oath of office, let letters testamentary issue accordingly. With costs against the
oppositors.

And on October 25, 1951, the court allowed the Philippine Trust Company to resign, reconsidered its
order appointing Sebastian Palanca special administrator, and appointed instead the Bank of the
Philippine Islands. Petitioner moved to reconsider the order, but his motion was denied, and
thereupon the present petition was filed. In its order the court held that it has discretion to choose the
special administrator and is not bound to appoint the person named therein as executor, because
the order had been appealed.

Petitioner claims that the reason why the respondent judge does not appoint him special
administrator is his personal dislike for him, and that the reasons given by the judge in not appointing
him, namely, alleged partiality to one group of heirs, less ability and experience in handling estates
as the appointees the previous and the subsequent one are not actually the reasons that
impelled him to deny petitioner's appointment. On the other hand, intervenors Maria Cuartero, et al.,
(a group of heirs), claim that petitioner had close personal relations with Rosa Gonzales (second
wife of deceased) and her children, acting as sponsor in her marriage with the deceased, obtaining a
loan from her family, etc. We have overlooked all the personal grounds or reasons given by the
parties, and have chosen to decide the issue from a purely legal point of view.

It should be noted at the outset that Rule 81 of the Rules of Court, under the provisions of which the
order appealed from was made, grants discretion to the probate court to appoint or not to appoint a
special administrator. It is silent as to the person that may be appointed as special administrator,
unlike section 6 of Rule 79, which expressly gives the order of preference of the persons that may be
appointed regular administrator. We have held in the case of Roxas vs. Pecson, however, that the
appointment of special administrators is not governed by the rules regarding the appointment of
regular administrators. (Roxas vs. Pecson, 82 Phil., 407, 46 Off. Gaz. [5] 2058.) But we further held,
however, that while the choice of the person lies within the court's discretion, such discretion should
not be a whimsical one, but one that is reasonable and logical and in accord with fundamental legal
principles and justice. The fact that a judge is granted discretion does not authorize him to become
partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment.
Such discretion must be based on reason and legal principle, and it must be exercised within the
limits thereof. And there is no reason why the same fundamental and legal principles governing the
choice of a regular administrator should not be taken into account in the appointment of the special
administrator.

The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his
right to dispose of his property in the manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of the
estate. The curtailment of this right may be considered as a curtailment of the right to dispose. And
as the rights granted by will take effect from the time of death (Article 777, Civil Code of the
Philippines), the management of his estate by the administrator of his choice should be made as
soon as practicable, when no reasonable objection to his assumption of the trust can be interposed
any longer. It has been held that when a will has been admitted to probate, it is the duty of the court
to issue letters testamentary to the person named as executor upon his application (23 C.J. 1023). It
is the testator that appoints his executor, as the question as to his peculiar fitness for such a position
or his want of ability to manage the estate can not be addressed to the discretion of the county
judge. (Holbrook vs. Head, 6 S.W. 592, 593, 9 Ky. 755.).

In the case at bar, the will has already been admitted to probate, and respondent judge himself has
expressly appointed petitioner as administrator. The only reason or ground, therefore, for
suspending his appointment, and for the appointment of a special administrator, who is not the
petitioner himself, is a very technical one. It also appears that the Philippine Trust Company, which
had acted as special administrator for a period of only a few months, has submitted a bill for
P90,000. This would cut deep into the income of the estate, and if the new special administrator
appointed by the respondent judge takes office, it is not improbable that the estate may again be
subjected to the same expensive cost of administration. Under these circumstances, it would seem
unreasonable to refuse to appoint the petitioner as special administrator. To do so would be delaying
the fulfillment of the wishes of the testator and subjecting the estate to unnecessary expense.
Petitioner has cited precedents in the surrogate courts of the State of New York to support his claim
that as the will appointing him regular administrator has been admitted to probate by the trial judge,
he should now be appointed special administrator during the pendency of the appeal against the
order admitting the will to probate. In the case of In re Shonts' Estate, 178 N.Y.S. 762, 767-768, the
judge makes the following very pertinent remarks:

. . . . It is my firm belief that the appointment of the executors named in a will as temporary
administrators during contested probates is not only more economical for suitors and estates
in ninety-nine cases of a hundred, but more consonant with the dignity of a court of this
character. The intrusion of nominees of the court, strangers to the dead, very distasteful to
the inhabitants of this state, should be as rare as possible in this court if people of property
are to continue to feel as ease and in security in this state.
The case of In re Erlanger's Estate, 242 N.Y.S. 249, also reiterates the same principle.

The courts have always respected the right to which a testator enjoys to determine who is
most suitable to settle his testamentary affairs, and his solemn selection should not lightly be
disregarded. After the admission of a will to probate, the courts will not name a better
executor for the testator nor disqualify, by a judicial veto, the widow or friend or other person
selected in the will, except upon strict proof of the statutory grounds of incompetency. Matter
of Leland's Will, 219 N.Y. 387, 393, 114 N.E. 854. For the foregoing reasons the person
selected by the testator in three successive wills will be appointed. (Pages 254-255).

The claimant's principal objection to the selection of Mr. Baron as temporary administrator is
founded upon her charge that he exercised undue influence upon the testator in the drafting
of the will offered for probate here. She also stresses his personal hostility to her. In my
opinion, and in view of the special circumstances of this case, these considerations do not
constitute a disqualification. Matter of Hilton's Will, 29 Misc. Rep. 532, 61 N.Y.S. 1073;
Jessup-Redfield Surrogate's Courts, 6th Edit., page 743; Matter of Robert, N.Y. Law Journal,
January 9th, 1912; Matter of Ashmore's Estate, 48 Misc. Rep. 312, 96 N.Y.S. 772. He
receives no legacy under the will. He is an attorney of long experience and his professional
standing is attested by several affiants. In addition to the fact that he was selected by Mr.
Erlanger as executor in three wills, it appears from several affidavits that he was for a long
period of time intimately associated with Mr. Erlanger. This association not only involved a
personal friendship, but also the relationship of Mr. Baron as lawyer and Mr. Erlanger as
client. It involved also knowledge of Mr. Erlanger's financial transactions, and, in addition, a
close business contact with Mr. Erlanger's various enterprises. Mr. Baron was an officer or
director of over thirty corporations through which Mr. Erlanger's various activities were
conducted. He held powers of attorney from him in the last years of Mr. Erlanger's life. He is
qualified, therefore, by this experience to safeguard the estate as temporary administrator.
(Pages 252- 253).

The writ prayed for is, therefore, granted, the appealed order reversed, and the temporary injunction
issued by the court made absolute. Let temporary letters of administration be issued in favor of
petitioner during the pendency of the appeal from the order admitting the will to probate.

Paras, C.J., Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.