Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-17633            October 19, 1966

CIRILO LIM, petitioner-appellant, vs.BASILISA DIAZ-MILLAREZ, oppositor-appellee.

Januario L. Jison, Sr. for petitioner-appellant. Amado B. Parreño, Sr. for oppositor-appellee.

REGALA, J.:

On February 26, 1954, Cirilo Lim, claiming to be a nephew of the late Jose Millarez who died intestate on October 22, 1953, filed with the Court of First Instance of Negros Occidental a petition for his appointment as judicial administrator of the estate of the deceased. The petition alleged that the deceased left no relatives such as descendants, ascendants or surviving spouse, except collaterals.

To the said petition, Basilisa Diaz-Millarez, claiming to be a widow of the late Jose Millarez, filed an opposition on two grounds: that the petitioner has an adverse interest in the estate; and that the properties of the estate are the subject matter of a litigation between her as plaintiff and Cirilo Lim as defendant in Civil Case No. 2986.

Trial of the case was postponed several times. When the case was called for hearing on March 17, 1959, both parties manifested the existence of a litigation between them over the properties of the estate. Hence, the trial court issued the following order:

When this expediente was called for hearing today, Atty. Enrique Mariño for the petitioner and Atty. Amado B. Parreño, Sr. for the oppositor appeared. Both manifested that there is an ordinary civil case between the parties herein, that is Basilisa Diaz-Millarez, as plaintiff and Cirilo Lim, as defendant, litigating between them on the ownership of the properties belonging to the deceased Jose Millarez, in the sense that while plaintiff Basilisa Diaz-Millarez in said civil case, now oppositor in the special proceeding alleged that she is the legitimate widow of the deceased Jose Millarez, yet defendant Cirilo Lim in said civil case, now petitioner herein, alleged that he is contesting said allegation because she is not the legitimate spouse of the deceased; that the said civil case was already decided in favor of the defendant therein and against the plaintiff by the Second Sala of this Court and now pending appeal in the Court of Appeals.

Under the above considerations, the present expediente is of no consequence. However, upon the final termination of said civil case, the parties concerned without prejudice can file another application for the judicial administration of the property involved in this administration. It is to be noted that this expediente was filed way back on February 26, 1954 that is more than 5 years and neither a special nor a regular administrator has been appointed so that the dismissal of the expediente would not be prejudicial to any of the parties interested in the same.

PREMISES CONSIDERED, this expediente is ordered dismissed.

Failing in his motion for the reconsideration of this order, the petitioner, Cirilo Lim, brought the case to the Court of Appeals but that court has certified the appeal to Us for the reason that there is no question of fact involved.

Meanwhile, the civil case between the parties which was also elevated to the Court of Appeals (CA-G.R. 24561-R) was decided on February 18, 1965. From the body of the decision, it appears that Basilisa Diaz-Millarez sought to recover from Cirilo Lim one-half of the total amount of P22,000 allegedly delivered to him by her and the deceased Jose Millarez on various occasions and to declare her as the owner of ½ of the profits and gains derived therefrom, on the ground that Jose Millarez and she used to live as husband and wife for about 23 years and as such she is entitled to ½ of the property held in common by them. She asserted further that since she contributed capital and labor to the tobacco business in which she and the deceased were engaged and from which they gave P22,000 in cash to Cirilo Lim, she would be entitled to ½ of the capital and ½ of the proceeds and profits derived from such capital. In answer, Cirilo Lim alleged that the money he received from Jose Millarez on various occasions was handed to one Tan Suaco for investment in the tobacco business. While the trial court, after hearing, ordered Lim to make an accounting of the P22,000 invested in the

tobacco business to be submitted to court, the Court of Appeals, on the other hand, made the following conclusion:

We agree with the court a quo, that the plaintiff Basilisa is entitled to ½ of the estate of the late Jose because she contributed labor and capital in the form of cash to a common fund with Jose during the period from 1930 up to the date of the death of Jose in 1953.

Accordingly, the judgment a quo is set aside and the records of this case are hereby remanded to the courta quo with instructions (1) that it appoints a qualified certified public accountant to examine with painstaking care the documentary evidence presented and to determine how much over and above the amount of P12,500 was invested by the late Jose Millarez and the plaintiff in the tobacco business together with the defendant Lim, and to assess the extent of the profits and gains derived from such investment; (2) to admit such other evidence as the court may consider material and relevant; and (3) to render judgment anew on the basis of the examination to be conducted by the qualified certified public accountant and such further evidence, if any, as shall be presented, adjudicating in favor of the plaintiff Basilisa Diaz-Millarez ½ of the capital and ½ of the profits and gains derived therefrom that properly pertain to the late Jose Millarez after the accounting shall have been accomplished. No pronouncement as to costs.

From what appears above, the claim which Basilisa has against Cirilo in the civil case supposed to be now again pending in the trial court, is based on her declared right to one-half of the estate of the deceased. It cannot, therefore, be denied that Cirilo Lim, as a relative of the deceased, has some interest adverse to that of Basilisa. Shown to have some liabilities to Basilisa and to the estate as a whole, Cirilo can not compatibly perform the duties of an administrator. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. (Sioca v. Garcia, 44 Phil. 711; Arevalo v. Bustamante, 69 Phil. 656).

The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is not to be interfered with on appeal unless the said court is clearly in error. (Sioca v. Garcia, supra).

IN VIEW HEREOF, the order appealed from is hereby affirmed, with costs against the petitioner-appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-44702 July 30, 1979

FACUNDO A. DALISAY, Judicial Administrator of the Intestate Estate of the late AMADO B. DALISAY,petitioner, vs.THE HON. FRANCISCO Z . CONSOLACION, Presiding Judge of the Court of First Instance of Davao, Branch II, and ANICETO S. DALISAY, respondents.

Primo O. Orellan for petitioner.

Jose M. Kimpo for private respondent.

 

BARREDO, J.:1äwphï1.ñët

Petition for certiorari and prohibition impugning the order of respondent court of August 16,1976 removing petitioner as judicial administrator in Special Proceeding No. 1986, Court of First Instance of Davao Branch II, the Instestate Estate of Amado Dalisay y Bangoy, and the order denying reconsideration thereof.

According to the allegation of the petition filed below, Amado Dalisay y Bangoy died on September 1, 1975 in Davao City; he was a bachelor without descendants or ascendants, whether legitimate or otherwise apparently, without any forced heir; he left personal and real properties worth about One Million (P1,000,000)

Pesos; and he died intestate. The petition prayed for the issuance of letters of administration to the Clerk of Court Atty. Eriberto A. Unson.

After due notice and hearing, respondent judge selected and appointed petitioner from among several nominees of the parties, as the judicial administrator of the estate. Aniceto S. Dalisay, herein private respondent, claiming to be the nearest of kin of the deceased, moved for reconsideration, but His Honor denied said motion holding inter alia that:têñ.£îhqwâ£

... upon its finding that, of all the would be administrators herein recommended, Facundo Dalisay appears to be the most qualified and suitable in that he not only enjoyed the confidence of the decedent, but also because up to the death of the latter, he appeared to have been managing and overseeing the affairs of the estate and therefore is in a position to better handle the preservation of the entire estate for the estate. (Annex "B", Order, March 8, 1976)

Corresponding letters of administration were accordingly issued to petitioner on March 15, 1976. An attempt of private respondent to appeal from said appointment was later withdrawn.

Because certain properties happened to be in the possession of herein private respondent, petitioner moved for delivery thereof to him but this motion was denied by the vacation judge then acting in place of herein respondent judge. Apparently, respondent Aniceto Dalisay must have submitted some kind of inventory at least of the properties in his possession, for on May 31, 1976, respondent judge issued the following order: têñ.£îhqwâ£

The inventory submitted by Aniceto Dalisay shows that a promissory note was executed by Facundo Dalisay on August 18, 1973 with the information that there is no record of payment.

IN VIEW WHEREOF, Facundo Dalisay is hereby directed to appear before this Court on June 10, 1976 at 8:30 A.M. to explain and produce receipts of payment of said promissory note if there is any in his possession.

SO ORDERED. (Annex "H", p. 36, Record).

Then on June 14, 1976, H-is Honor issued another order, which is self- explanatory, thus: têñ.£îhqwâ£

This refers to the Order of the Court dated May 31, 1976, requiring Facundo Dalisay to appear, and explain or produce receipts of payment for the promissory note in the amount of P10,000.00 which he executed in favor of the late Amado Dalisay on August 18, 1973, which appeared in the reports submitted by Aniceto Dalisay per Order of this Court.

In the hearing, Facundo Dalisay admitted that he signed the promissory note (Exhibit "C" — Motion-Facundo Dalisay) after the execution of the Deed of Sale (Exhibit "A" — Motion-Facundo Dalisay) of 2 motor vehicles in his favor. Facundo Dalisay further admitted that he was not able to pay the installments in the manner set forth in the promissory note but he was able to pay it all.

When asked to produce any receipt of the payments he made, Facundo Dalisay claimed that he did not get any receipt, because he and the late Amado Dalisay are like brothers. If this is so, then why did the late Amado Dalisay require him to sign a promissory note?

Again, if the claim of Facundo Dalisay is true since the Deed of Sale stated that the consideration was already paid, why did not the late Dalisay return the promissory note to him, gratis et amore, or after he (Facundo Dalisay), had fully paid the same,

In the face of the, record, the explanation of Facundo Dalisay does not merit any serious consideration.

WHEREFORE, Facundo Dalisay is hereby directed to pay the intestate estate of Amado Dalisay the sum of Ten Thousand (P10,000.00) Pesos within a period of sixty (60) days from receipt of this order.

SO ORDERED. (Annex "1", pp. 37-38, Record).

Petitioner asked for reconsideration of the foregoing order, explaining that he had already paid the amount in question but since he "was precluded from testifying" thereon under the prohibition against testimony of survivors, he proposed that he be allowed to pay the same in monthly installments of P500.00. To this motion, respondent countered with a motion asking that petitioner "be removed or allowed to resign" because his

failure to pay "may be considered as evidence of abuse of trust and confidence." (Annex K of petition). Petitioner filed a rejoinder, Annex L of the petition, contending that there was no legal ground for his removal. Resolving the incident, His Honor relieved petitioner as judicial administrator reasoning out thus: têñ.£îhqwâ£

The deceased Amado Dalisay as the preliminary record of the case will show, left a considerable estate, consisting principally of income-producing urban and agricultural lands, with some personal properties.

In considering the appointment of a judicial administrator, this Court took into account that the said person must be a man of utmost integrity. Primarily cause of the full trust and confidence that the deceased had apparently shown on the face of the Special Power of Attorney dated August 15, 1963 to Facundo Dalisay and of the Affidavit dated June 2, 1974, he was appointed by this Court as judicial administrator.

It is sad to state that administrator Facundo Dalisay did not measure up to the standard of integrity and character the Court required and expected of him.

Due to the sizeable and valuable estate with considerable income, the judicial administrator must have a character to resist temptation for personal gain which is open to him in such a position. He must therefore be, "like Ceasar's Wife above suspicion."

His explanation stated in the aforestated motion for reconsideration that he "never denied his obligation under the promissory note but claimed payment," is a posture, under the circumstances shown during the hearing, that does not speak well of the character expected of a judicial administrator.

Thus, under the said circumstances as shown during the hearing, administrator Facundo Dalisay appears to be unsuitable for the position as judicial administrator and his continuance in the position would work to the disadvantage of the said estate. Coupled with his account with the estate in the Amount of P10,000.00, his relief from the position is necessary. (Annex "N", pp. 47-48, Record).

It is the position of petitioner that in so relieving him of his position as judicial administrator, respondent acted in grave abuse of discretion. He points out that it was actually he who revealed the existence of the promissory note — and this allegation is not denied by respondents — and that if his claim that he has already paid the amount in question has not convinced the court, it cannot be said that it is so entirely and totally incredible that it could be considered as justifying His Honor's conclusion that petitioner has not lived or measured up to the standard of integrity and character of a judicial administrator.

On the other hand, respondent posits that petitioner, not being in any way related to the deceased, was appointed merely in the exercise of the court's discretion and cannot therefore claim any "proprietary and/or pecuniary right to insist in administering the properties now under custodia legis." In other words, the point raised is that respondent judge should also have wide discretion in removing him.

Before passing on such conflicting claims of the parties, it may be mentioned here that in a motion dated May 10, 1979, private respondent prays that he "be allowed to file a motion with the probate court for removal of Facundo A. Dalisay as administrator on grounds different from the ground upon which he was relieved by the probate court." It is alleged in said motion that: têñ.£îhqwâ£

III

Private respondent Aniceto S. Dalisay would like to file a motion with the Probate Court for removal of Facundo A. Dalisay as administrator for acts committed prior and subsequent to his relief as administrator by the Probate Court, grounds different from the ground upon which he was removed by the Probate Court, hoping that with two cases pending against him, the termination of one will bring about his early removal as Administrator. But because of the temporary restraining order issued by this Honorable Court enjoining the respondent Judge from further proceeding with Special Case No. 1986, leave of this Honorable Court is necessary. The following are some of the grounds upon which he will predicate the motion.

IV

Facundo A. Dalisay neglected to perform an order of the Court and duties expressly provided by the Rules of Court. These are grounds for removal of administrator pursuant to Section 2, Rule 82, Rules of Court. In the order of the Probate Court dated June 27, 1977, the last paragraph thereof states: têñ.£îhqwâ£

"The judicial administrator is hereby warned that disbursement of any nature without prior approval of the Court shall be chargeable on his personal account."

A xerox copy of the order of the Probate Court dated October 13, 1977, quoting the order dated June 27, 1977, is enclosed herewith.

V

From the above-quoted order, leave of court is necessary before Facundo A. Dalisay makes any disbursement, otherwise the same is chargeable to him.

VI

It appears from the account of administrator Facundo A. Dalisay from March 16, 197 7 to March 15, 1978, and March 16, 1978 to March 15, 1979, submitted to the Probate Court, that he gave cash advances to himself, his bookkeeper and Atty. Primo O. Orellan, his counsel. in the total amount of P22,064. 10 without authority from the Probate Court and although no fees have yet been allowed them by the said court. He gave himself a monthly allowance of P500.00 and Atty. Orellan P300.00.

VII

Under Section 1, Rule 85, Rules of Court, the administrator is accountable for the. income of the estate. Facundo A. Dalisay failed to collect P21,755.03 from five (5) tenants from Coronon, Sta. Cruz, Davao del Sur, representing the shares of the estate from copra; P8,917.11 from two (2) lessees from Panabo, Davao del Norte, and Barrio Lasang Licanan, Davao City, representing the share of the estate from ramie, and P33,600.00 from two (2) lessees at Binatan, Digos, Davao del Sur, and Sirawan, Sta. Cruz, Davao del Sur, representing unpaid rentals from 35-1/2 hectares of agricultural lands as shown in his annual accounts from March 16, 1977 to March 15, 1978, and March 16, 1978 to March 15, 1979 submitted to the Probate Court.

VIII

As also shown in the said annual accounts, Facundo A. Dalisay has not been collecting rentals from the residential and/or commercial lots situated at Claro M. Recto Street, Davao City, belonging to the estate, occupied by him, his counsel Atty. Primo O. Orellan, his brother and relatives-in-laws of the latter, and his sister.

IX

Facundo A. Dalisay failed to protect the estate from spurious claims. In fact, he was biased in favor of, if not in connivance with, some claimants.

X

Facundo A. Dalisay padded his expenses for travel and inspection as shown in his annual accounts from March 15, 1977 to .March 16, 1979.

XI

Facundo A. Dalisay committed perjury when he testified in court on March 29, 1979, during the hearing of the claims of Desiderio Dalisay that he does not know Aniceto S. Dalisay. (Pp. 5154, Vol. II, Record),

The Court is of the considered view that if the foregoing allegations are sufficiently substantiated, after appropriate proceedings, the removal of petitioner would be legally justified. Therefore, rather than insist on the ground relied upon by His Honor in his order under review, which to Us appears to be quite flimsy, considering that the mere fact that an administrator happens to owe money to the decedent is not in itself a ground for his removal, and in tills case the evidence does not seem indubitable that petitioner's claim of payment was made in bad faith or in an obvious attempt to defraud the estate, it would be fairer for all concerned for respondents to proceed against petitioner on the basis of the above-quoted charges against him. in this connection, it is to be noted that in the considerations of His Honor's order of June 14, 1976 herein above earlier quoted, it is not definite that petitioner's explanation was malicious and inherently unfounded. In any event, the petitioner has not refused to pay; he only asked for some liberality so he could pay in installments. Surely, such proposal could not have converted him into a debtor in bad faith. The point of integrity raised by respondent court appears a little harsh. Otherwise stated, We find the ground for which petitioner has been removed to be rather

precipitate. From which, it results that the orders herein assailed constitute grave abuse of discretion and should be set aside.

Accordingly, the petition is granted and the orders mentioned at the outset of this decision are hereby set aside, without prejudice to respondent court acting, as the facts and the law may warrant, on the new move of private respondent for the removal of petitioner. The restraining order heretofore issued is hereby lifted and respondent court is now free to act on all the incidents for which leave of this Court is being sought in various motions to that end. Costs against respondent.

Antonio, Aquino, Concepcion, Jr. and Abad Santos, JJ., concur.1äwphï1.ñët

Santos, J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-42088 May 7, 1976

ALFREDO G. BALUYUT, petitioner, vs.HON. ERNANI CRUZ PAÑO, ENCARNACION LOPEZ VDA. DE BALUYUT, JOSE ESPINO and CORAZON ESPINO, respondents.

Mary Concepcion-Bautista for petitioner.

Santiago, Salunat and Agbayani for respondent Encarnacion Lopez Vda. de Baluyut.

 

AQUINO, J.:

Sotero Baluyut died in Manila on January 6, 1975 at the age of eighty-six, leaving an estate allegedly valued at not less than two million pesos.

A few weeks later, or on February 20, his nephew, Alfredo G. Baluyut, filed in the Court of First Instance of Quezon City a verified petition for letters of administration. He alleged that the deceased was survived by his widow, Encarnacion Lopez, who was mentally incapable of acting as administratrix of the decedent's estate. Alfredo surmised that the decedent had executed a will. He prayed that he be appointed regular administrator and in the meantime as special administrator.

The lower court in its order of February 24, 1975 appointed Alfredo G. Baluyut as special administrator with a bond of P100,000.

Mrs. Baluyut in her verified opposition of March 8, 1975 alleged that she was unaware that her deceased husband executed a will. She characterized as libelous the allegation as to her mental incapacity. She prayed that she be named administratrix and that the appointment of Alfredo G. Baluyut as special administrator be set aside.

The lower court in its order of March 24, 1975 cancelled Baluyut's appointment as special administrator. In that same order the lower court noted that after asking Mrs. Baluyut a series of questions while on the witness stand, it found that she "is healthy and mentally qualified".

Alfredo G. Baluyut moved for the reconsideration of that order. Acting on that motion, the lower court in its order of March 31, 1975 appointed Baluyut and Jose Espino as special administrators.

Mrs. Baluyut in her verified amended opposition of September 2, 1975 asked that Espino, former governor of Nueva Vizcaya and an alleged acknowledged natural child of Sotero Baluyut, be appointed administrator should she not be named administratrix.

On November 12, 1975 Mrs. Baluyut filed an urgent motion praying that she be appointed administratrix. She reasoned out that Alfredo G. Baluyut had no more interest in the decedent's estate because as a collateral relative he was excluded by Espino and other supposed descendants of the deceased who had intervened in the proceeding, and, therefore, it was not necessary to continue with the reception of his evidence.

Alfredo G. Baluyut opposed the urgent motion. He alleged that Espino was not a natural child of Sotero Baluyut because Espino's parents were the spouses Elino Espino and Josefa de Guzman. Alfredo further alleged that Mrs. Baluyut was declared an incompetent by the Juvenile and Domestic Relations Court of Quezon City in its order of September 25, 1975 in Special Proceeding No. QC-00939 for the guardianship of Mrs. Baluyut. That proceeding was instituted by her sisters, Cristeta Lopez Vda. de Cuesta and Guadalupe Lopez-Viray.

At the hearing of Mrs. Baluyut's urgent motion on November 17, 1975 no oral and documentary evidence was presented. The lower court merely examined Mrs. Baluyut as follows:

Court: We want also to hear her testimony.

xxx xxx xxx

Atty. Salunat: We are now therefore presenting the widow, your Honor, to take the witness stand for examination by the court.

xxx xxx xxx

Court to witness: Can you testify in English?-No, your Honor, Pampango.

Q. Ilocano? — A. No, your Honor.

Atty. Salunat: She can testify in Tagalog your Honor, which comprehensible.

Court: Your remember when you were born, Mrs. Baluyut? — A. March 25, 1901.

Q. Where did you graduate? — Madres Dominicas.

Q. When did you get married to Sec. Baluyut? — A. I cannot remember the date but this was in Lingayen.

Q. What church? — A. A Catholic.

Court: You want to ask more questions Attorney?

Atty. Salunat: Just a few clarificatory questions, your Honor.

Q. Do you know Gov. Espino? — A. Yes.

Q. Why do you know him? — A. Because he is like a son to me.

Q. Do you know whether Gov. Espino has any relationship with the late Don Sotero Baluyut? — A. Yes, why not.

Q. Will you please tell us what is the relationship if there is any? — A. He is his son, sir.

Atty. Salunat: I think that would be all, your Honor.

Court: Submitted?

Atty. Salunat: We will ask the Court to (be allowed to) submit a rejoinder, your Honor.

The probate court in its order of November 27, 1975 terminated the appointments of Espino and Alfredo G. Baluyut as special administrators and appointed Mrs. Baluyut as regular administratrix with a bond of P20,000. The order was based on the fact that as surviving spouse she has a preferential right to be appointed as administratrix of her deceased husband's estate and that she is entitled to three-fourths of the conjugal estate: one-half in her own right and one-fourth as heir of the deceased. The lower court said it was convinced of the widow's capacity and that her "sufficient understanding" justified her appointment.

Letters of administration were issued to Mrs. Baluyut after she posted her bond. She took her oath of office on November 29, 1975.

On December 13, 1975 Alfredo G. Baluyut filed against respondent Judge, Mrs. Baluyut and the Espino spouses this special civil action of certiorari in order to set aside the order of November 27 appointing Mrs. Baluyut as administratrix.

This court issued a restraining order enjoining the respondents from enforcing the order of November 27 and from disposing of the funds or assets of the estate in their possession or deposited in certain banks.

The Espino's in their comment alleged that Alfredo G. Baluyut is aware that Jose Espino was acknowledged in a notarial instrument by Sotero Baluyut as his natural child.

Mrs. Baluyut in her comment alleged that Alfredo G. Baluyut instituted the administration proceeding after he had failed to get from her a cheek for P500,000 belonging to the decedent's estate and that he grossly misrepresented that she was mentally incompetent. She further alleged that the order of the Juvenile and Domestic Relations Court declaring her an incompetent was issued in a blitzkrieg manner because it was based on the report of Doctor Lourdes V. Lapuz which was filed in court just one day before the order was issued.

Mrs. Baluyut's main contention is that it is the probate court and not the Juvenile and Domestic Relations Court that should decide the issue as to her competency to act as administratrix.

Alfredo G. Baluyut in his manifestation of February 2, 1976 disclosed that Sotero Baluyut executed a notarial will on April 14, 1973. In that will he bequeathed to Mrs. Baluyut his one-half share in certain conjugal assets and one-fourth of the residue of his estate. The remaining three-fourths were bequeated to his collateral relatives named Irene, Erlinda, Estrellita, Eliseo and Alfredo, all surnamed Baluyut, and Emerita, Emilio and Benjamin, all surnamed Miranda. The testator designated Mrs. Baluyut as executrix. Espino is not mentioned in that will.

In this Court's resolution of May 7, 1976 respondents' comments were treated as their answers. The case was deemed submitted for decision.

The issue is whether the lower court acted with grave abuse of discretion in appointing Mrs. Baluyut as administratrix.

We hold that while the probate court correctly assumed that Mrs. Baluyut as surviving spouse enjoys preference in the granting of letters of administration (Sec. 6[a), Rule 78, Rules of Court), it does not follow that she should be named administratrix without conducting a full-dress hearing on her competency to discharge that trust.

Even the directive of the testator in his will designating that a certain person should act as executor is not binding on the probate court and does not automatically entitle him to the issuance of letters testamentary. A hearing has to be held in order to ascertain his fitness to act as executor. He might have been fit to act as executor when the will was executed but supervening circumstances might have rendered him unfit for that position.

Thus, it was held that a hearing is necessary in order to determine the suitability of the person to be appointed administrator by giving him the opportunity to prove his qualifications and affording oppositors a chance to contest the petition (Matute vs. Court of Appeals, L-26106, January 31, 1969, 26 SCRA 768, 791).

In this case the probate court briefly and perfunctorily interrogated Mrs. Baluyut in order to satisfy itself on her mental capacity. The court did not give Alfredo G. Baluyut a chance to contest her qualifications. He had squarely raised the issue as to her competency. The probate court assumed that

Alfredo G. Baluyut had no interest in the decedent's estate. As it now turned out, he is one of the legatees named in the decedent's alleged will.

Moreover, it is necessary to convert the proceeding in the lower court into a testamentary proceeding. The probate of the will cannot be dispensed with and is a matter of public policy (Art. 838, Civil Code; See. 1, Rule 75, Rules of Court; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249).

After the will is probated, the prior letters of administration should be revoked and proceedings for the issuance of letters testamentary or of administration under the will should be conducted (Sec. 1, Rule 82, Rules of Court; Cartajena vs. Lijauco and Zaballa, 38 Phil. 620; Rodriguez vs. De Borja, L-21993, 64 O.G. 754, 17 SCRA 418).

Whether Sotero Baluyut died testate or intestate, it is imperative in the interest of the orderly administration of justice that a hearing be held to determine Mrs. Baluyut's fitness to act as executrix or administratrix. Persons questioning her capacity should be given an adequate opportunity to be heard and to present evidence.

The lower court departed from the usual course of probate procedure in summarily appointing Mrs. Baluyut as administratrix on the assumption that Alfredo G. Baluyut was not an interested party. That irregularity became more pronounced after Alfredo G. Baluyut's revelation that the decedent had executed a will. He anticipated that development when he articulated in his petition his belief that Sotero Baluyut executed wills which should be delivered to the court for probate.

Certiorari lies when a grave abuse of discretion was patently committed by the lower court or if the petitioner's contention is clearly tenable or when the broader interests of justice or public policy justify the nullification of the questioned order (Manila Electric Company and Sheriff of Quezon City vs. Hon. Enriquez and Espinosa, 110 Phil. 499, 503; Pacheco vs. Tumangday and Fernando, 108 Phil. 238; Raneses vs. Teves, L-26854, March 4, 1976).

Before closing, a pending incident herein should be resolved. Alfredo G. Baluyut in his motion of January 15, 1976 prayed that respondent Judge be enjoined from acting on Mrs. Baluyut's motion for the appointment of Espino as special administrator. In view of Alfredo G. Baluyut's manifestation of

April 2, 1976 that his motion had become moot, the same is hereby denied.

WHEREFORE, the lower court's order of November 27, 1975 appointing Mrs. Baluyut as administratrix is set aside. The letters of administration granted to her are cancelled. The probate court is directed to conduct further proceedings in consonance with the guidelines delineated in this decision. Costs against respondent Mrs. Baluyut.

SO ORDERED.

Fernando, Acting C.J, Barredo, Antonio and Muñoz Palma, JJ., concur.

Concepcion Jr., J., is one leave

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-11848             May 31, 1962

IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED IRENE SANTOS. JOSE D. VILLEGAS, Administrator, ADELA SANTOS GUTIERREZ, movant-appellee, vs.JOSE D. VILLEGAS, and RIZALINA SANTOS RIVERA, oppositors-appellants.

Perkins and Ponce Enrile for movant-appellee.Delgado, Flores and Macapagal for oppositors-appellants.

PAREDES, J.:

On November 11, 1954, Irene Santos died intestate, leaving as her only heirs her surviving spouse Jose D. Villegas and two nieces — daughters of a deceased brother, Rizalina Santos Rivera and Adela Santos Gutierrez. Thereafter, the surviving spouse filed with the Rizal CFI, Pasay City Branch, a petition for Letters of Administration (Sp. Proc. No. 2100), and was appointed administrator of the estate. In the petition, he named as intestate heirs, besides himself, Rizalina Santos Rivera and Adela Santos Gutierrez. Under date of January 15, 1955, in the above-mentioned Special Proceedings, an unverified manifestation signed by Adela Gutierrez, accompanied by a public instrument entitled "Kasulatan ng Bilihan at Salinan", dated January 12, 1955, was presented to the Probate Court, stating among others, the following —

The undersigned hereby solemnly manifests . . . that all her rights, interests and participation in the estate subject of this proceeding now belong to her sister, Rizalina Santos Rivera, and that hereafter she will not take part in the above-entitled proceedings and is not entitled to the service of any pleadings, motion, order or decision filed or promulgated therein.

In a verified manifestation presented before the probate Court on January 25, 1955, Adela averred that the deed of assignment of her rights, participation and interest in the estate of Irene Santos and the first manifestation were obtained thru fraud practiced by the administrator upon her and were vitiated by mistake or undue influence. Therein, she narrated that sometime in December, 1954, due to stringent financial conditions, she (Adela) requested the administrator for an advance of P2,000.00 from the estate. The administrator refused on the ground that it is against the law, but suggested that she might obtain a loan from her sister Rizalina, offering to help. After Christmas of 1954, the administrator informed Adela that he was able to secure the conformity of Rizalina to give her a loan of P10,000.00 instead of only P2,000.00. When Adela expressed surprise over the amount, the administrator replied that he only wanted to help her get started in business. On January 12, 1955, Adela was brought by Villegas and Rizalina to the office of their lawyer, where she was made to sign a document she could not read. On January 13, 1955, the lawyer asked Adela to sign another document, which he said was to be presented in Court and explained the contents of the document signed the day before. It was only then that Adela came to know that said document was a deed of sale.1 When Adela protested, Villegas told her that the matter could be discussed better in his house in Malabon. On arriving at Malabon, Villegas informed Adela that the amount of P50,000.00 which Rizalina was paying for her share in the inheritance, was probably more than what she would get in the estate, because the estate is not valuable and had plenty of debts. Villegas handed to Adela P6,800.00 in cash and a check drawn, by Rizalina on the Prudential Bank for P3,200.00. Although Adela did not want to accept the money, Villegas refused to take them back. When she was made to sign the deed of assignment, Adela did not know the true value of the estate, which she now estimates to be no less than P1,000.000.00. In the same manifestation, Adela stated that a complaint for annulment of the Deed of Assignment was being prepared; that she was tendering the full amount of P10,000.00 to Villegas or Rizalina; that she was placing the above facts within the knowledge of the Court so that no action be taken giving value to the alleged deed of assignment and in order that she (Adela) might be notified of each and all pleadings or orders connected with the proceedings. The administrator Villegas and Rizalina filed exceptions and/or objections to the Manifestation, denying the allegations of fraud, undue influence and the like.

In a motion dated September 7, 1955, filed with the CFI of Pasay, Adela asked the Court to transfer Special Proceedings No. 2100, to Branch I (Pasig), alleging that the complaint for the nullity of the Deed of Assignment filed with the Rizal CFI had been assigned to said Branch I; and that the transfer would save time and effort on the part of all concerned. The motion was strongly opposed by the administrator who stated, among others —

That in the final distribution of the estate to the heirs, the share corresponding to the movant Adela Santos Gutierrez may be ordered withheld by this Court (if due motion therefor shall have been presented to this Court) until the validity of the deed of assignment shall have been resolved by Branch I of the Court of First Instance of Rizal.

On September 16, 1955, the motion to transfer was denied.

On February 9, 1956, Adela presented with the Probate Court, a motion praying that the administrator and/or his attorneys be required to furnish her all copies of pleadings filed or to be filed in the intestate proceedings, it appearing that the administrator presented pleadings in Court without serving her copies thereof.

An opposition was interposed by the administrator, who alleged that the movant, although originally a party to the probate proceeding, has voluntarily and expressly desisted from being so, and that having assigned by sale, all her rights, interests and participations in the estate, she has no longer any legal standing in the case. On March 12, 1956, the Court (Judge Emilio Rilloraza, presiding) promulgated the following order —

. . ., the Court is of the opinion that the said motion should be, as it is hereby, granted and the said administrator and/or his attorneys are hereby directed to furnish Adela Santos Gutierrez, through counsel, all copies of the pleadings filed and to be filed in this case, except those mentioned in said motion within a reasonable time upon notice hereof.

The Clerk of Court should see to it that before receiving for filing by the administrator or the other legal heir, Rizalina Santos Rivera, and/or their respective counsel, any pleadings, motion, etc., that copies thereof have been furnished Adela Santos Gutierrez through counsel.

A series of long pleadings were presented by the parties, following a motion of reconsideration, containing arguments and authorities sustaining their respective theories. On June 2, 1956, vacation Judge Jesus Y. Perez, handed down an Order, the material portions of which follow —

x x x           x x x           x x x

The only question for determination in this incident is whether or not Adela Santos Gutierrez has a right to intervene in this probate proceeding. The Administrator contends that she has no such right because she had already assigned all her rights to her sister, Rizalina Santos Rivera.

Although at the outset, Adela Santos Gutierrez bad the right to intervene herein as one of the legal heirs of the deceased Irene Santos, yet, when she filed her manifestation, accompanied by the Deed of Sale and Assignment, informing this Court that she had assigned all her rights and interest as such heir to her sister, Rizalina Santos Rivera, said Adela Santos Gutierrez had ceased to have any interest in this estate and without such interest, she could no longer intervene in this proceeding. The assignment, it copy of which is attached to the record, is in the form of a public deed which is entitled to be accorded the presumption of validity so that until the same is annulled in the corresponding action filed by Adela Santos Gutierrez in the Pasig Branch of this Court, her interest would merely be a contingent one, that is, depending upon the contingency of a decision declaring such annulment of the deed of assignment. This contingent interest of Adela Santos Gutierrez is not sufficient to make her an interested party in this proceedings, unless otherwise provided by law, the interest required in order that a person may be a party, must be material and direct, and not indirect or contingent (II Moran's Rules of Court, 1952 Ed., pp. 391-92). We quote the following from Moran's Rules of Court:

x x x           x x x           x x x

In the same way, since the interest of Adela Santos Gutierrez to be considered as heir is dependent upon the contingency that she would succeed in her case for annulment of the Deed of Assignment in the Court of First Instance of Rizal, her contingent interest is not sufficient to make her an interested party in this proceeding.

WHEREFORE, the Court hereby sustains the motion for reconsideration filed by the administrator and hereby sets aside the order of March 12, 1956.1äwphï1.ñët

Adela Santos Gutierrez, on June 26, 1956, moved for the reconsideration of the above Order, contending that her motion on February 8, 1956, was not a leave for intervention (Rule 13). At most, the rule on transfer of interestpendente lite (Sec. 20, Rule 3), should be applicable, not that of intervention. On August 10, 1956, Judge Rilloraza, who had already returned from vacation, set aside the order of Judge Perez, stating —

..., this Court is of the opinion that the order of this Court dated June 2, 1956 should be, as it is hereby set aside.

Let the administrator and/or his attorney furnish henceforth Adela Santos Gutierrez, through counsel, copies of all pleadings, motions, etc., to be filed in this case.

The above Order is now the subject of the instant appeal, the administrator and Rizalina Santos Rivera assigning three (3) errors allegedly committed by the court a quo, all of which pose a singular issue, viz., whether Adela Santos Gutierrez is still entitled to be furnished with pleadings filed by the administrator in the probate proceedings and orders therein issue by the lower court.

The order appealed from being interlocutory, cannot be the subject of an appeal. Even on this plane alone, the appeal should be dismissed. Of course, appellants cited the case of Tengco v. San Jose, G.R. No. L-8162, Aug. 30, 1955, wherein We considered the appeal as petition for certiorari. That case, however, has no parallel to the one now under consideration. It was one for mandamus for the purpose of compelling the Judge to give due course to an appeal. Considering that in order for certiorari and mandamus to prosper, allegations to the effect that the court has no jurisdiction, or it acted in excess thereof or with grave abuse of discretion, must appear, which is not obtaining in the instant case (because it is an ordinary appeal), it becomes peremptory that the present appeal is not in order.

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

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

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

We see no prejudice to be suffered by the administrator and Rizalina, if they are required to furnish copies of their pleadings to appellee. On the contrary, doing so, will give appellee her day in court and provide protection to the administrator himself.

IN VIEW OF THE FOREGOING, We find the Order appealed from to be in conformity with the law and jurisprudence. The same should be, as it is hereby affirmed, in all respects, with costs against the appellants Jose D. Villegas and Rizalina Santos Rivera, in both instances.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Dizon, JJ., concur.Bengzon, C.J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-15388             January 31, 1961

DORA PERKINS ANDERSON, petitioner-appellee, vs.IDONAH SLADE PERKINS, oppositor-appellant.

Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-appellee.Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.

REYES, J.B.L., J.:

Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636 authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to sell at public auction certain personal properties left by the deceased.

It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by Dora Perkin Anderson for the probate of the supposed last will and testament of the late Eugene Arthur Perkins, who died in Manila on April 28, 1956 allegedly possessed of personal and real properties with a probable value of P5,000,000. On the same date of the filing of the aforesaid petition, petitioner Dora Perkins Anderson also filed a urgent petition for the appointment of Alfonso Ponce Enrile as special administrator of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile as such special administrator upon his posting of a bond in the amount of P50,000. On July 9, 1956, Idonah Slade Perkins, surviving spouse of the deceased entered an opposition to the probate of the will presented by petitioner Dora Perkins Anderson. On

September 28, 1956 the special administrator submitted an inventory of all the assets which have come to his knowledge as belonging to the deceased Eugene Arthur Perkins at the time of his death.

About two years later, or on September 4, 1958, the special administrator submitted to the court a petition seeking authority to sell, or give away to some charitable or educational institution or institutions, certain personal effects left by the deceased, such as clothes, books, gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in value, in order to avoid their further deterioration and to save whatever value migh be obtained in their disposition. When the motion was heard on September 25, 1958, the court required the administrator to submit a specification of the properties sought to be sold, and in compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in place of a specification, a copy of the inventory of the personal properties belonging to the estate with the items sought to be sold marked with a check in red pencil, with the statement that said items were too voluminous to enumerate.

On July 9, 1956, Idonah Slade Perkins filed an opposetion to the proposed sale. Reasons, for the opposition were that (1) most of the properties sought to be sold were conjugal properties of herself and her deceased husband; and (2) that unauthorized removal of fine pieces of furniture belonging to the estate had been made.

The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale, authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider this order on the grounds (1) that said order in effect authorized the special administrator to sell the entire personal estate of the deceased, contrary to Rule 81, section 2. Rules of Court; (2) that said order was issued without a showing that the goods and chattels sought to be sold were perishable, pursuant to Rule 81, section 2, Rules of Court; (3) that the personalty sought to be sold represented the lifetime savings and collections of oppositor; (4) that there is evidence on record showing unauthorized withdrawals from the properties of the estate, and the sale of the inventoried lot would prevent identification and recovery of the articles removed; and (5) that there is also evidence showing oppositor's separate rights to a substantial part of the personal estate.

On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon, oppositor Idonah Slade Perkins appealed to this court.

Appellant first claims that the personal properties sought to be sold not being perishable, the special administrator has no legal authority to sell them. This argument is untenable, because section 2, Rule 81, of the Rules of Court, specifically provides that the special administrator "may sell such perishable and other property as the court orders sold", which shows that the special administrator's power to sell is not limited to "perishable" property only.

It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala v. Gonzales, 53 Phil. 104; Collins v. Henry, 118 S.E. 729, 155 Ga. 886; Sqydelko v. Smith's Estate, 244 N.W. 149, 259 Mich. 519). But it is not alone the specific property of the estate which is to be preserved, but its value as well, as shown by the legal provision for the sale by a special administrator of perishable property (Cao vs. Cascade Silver Mines & Mills, et al., 213 P. 109 66 Mont. 488). It is in line with this general power of the special administrator to preserve not only the property of the estate but also its value, that section 2, Rule 81, also empowers such administrator to sell "other proerty as the court ordered sold;" .

There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented thereto the appellant, the surviving spouse of the deceased, on the ground that she is allegedly entitled to a large portion of the personal properties in question, either because the were conjugal property of herself and the deceased, or because they are her own, exclusive, personal property. Indeed the records show that up to the time the propose sale was asked for and judicially approved, no proceeding had as yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant from the mass of the estate supposedly left by the deceased or to liquidate the conjugal partnership property of the oppositor-appellant and the deceased. Until, therefore the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with a appellant as to which properties of the conjugal partnership she would not mind being sold to preserve their value the proposed sale is clearly premature. After all, most of the items sought to be sold — pieces of furniture, kitchen and dinner ware, electrical appliances, various gadget and books — can easily be protected and preserved with proper care and storage measures in either or both of two residential houses (in Manila and in Baguio City left by the deceased, so that no reasons of extreme urgency justify the proposed sale at this time over the strong opposition and objection of oppositor-appellant who may later be adjudged owner of a substantial portion of the personal estate in question.

The special administrator claims in his brief that t oppositor-appellant should have indicated the alleged "fine furniture" which she did not want sold and that her refusal to do so is an indication of her unmeritorious claim. But it does not appear that appellant was given a reasonable opportunity to point out which items in the inventory she did not want sold. In fact, her opposition to the proposed sale and later her motion for reconsideration to the order approving the same were overruled by the court without so much as stating

reasons why the grounds for her opposition were not well-founded; the records do not even show that an inquiry was made as to the validity of the grounds of her opposition.

WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell certain personal properties of the estate is set aside, with costs against the special administrator Alfonso Ponce Enrile and petition-appellee Dora Perkins Anderson.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-23135      December 26, 1967

TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee, vs.SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors-appellants.

Gatchalian and Sison and J. A. Bardelosa, Jr. for petitioner-appellee.Jose L. Desvarro Jr. for oppositors-appellants

MAKALINTAL, J.:

On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the probate of a document alleged to be the last will and testament of Hilarion Ramagosa, who died on December 1, 1959. Said document, written in Tagalog and dated February 26, 1949, institutes petitioner as sole heir of the testator.

The petition for probate was opposed by two (2) of oppositors — appellants herein — who questioned the due execution of the document, claiming that it was made under duress and was not really intended by the deceased to be his last will and testament. Aside from merely opposing the petition for probate, the first set of oppositors — Saturnino and Santiago Ramagosa — also claimed that they, instead of petitioner, were entitled to inherit the estate of the deceased. The other oppositors representing themselves simply as next of kin, appropriately prayed only for the disallowance of the will.

At the hearings of the petition petitioner adduced his evidence, and then rested his case on February 16, 1961. Reception of oppositors' evidence was set for July 14, 1961. However, on July 3, 1961 oppositors moved for the dismissal of the petition for probate mainly on the ground that "the court lacks jurisdiction over the subject-matter because the last will and testament of the decedent, if ever it was really executed by him, was revoked by implication of law six years before his death." Oppositors alleged that after making the will Hilarion Ramagosa sold to petitioner Mariano Sumilang and his brother Mario the parcels of land described therein, so that at the time of the testator's death the titles to said lands were no longer in his name.

Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by another opposition on August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner moved to strike out the oppositors' pleadings on two grounds, namely:

1. That oppositors have no legal standing in court and they are bereft of personality to oppose the probate of the last will and testament of the testators; and

2. That oppositors have no valid claim and interest in the distribution of (the) estate of the aforesaid testator and no existing valid right whatsoever.

On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as follows:

Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same is hereby denied for the allegations contained therein goes (sic) to the very intrinsic value of the will and other grounds stated on said motion to dismiss are without merit.itc-alf With respect to the motion to strike out opposition and all other pleadings of oppositors filed by the petitioner, it appears that oppositors have no relationship whatsoever within the fifth degree as provided by law and therefore the oppositors are totally strangers to the deceased whose will is under probate. This being so, the motion to strike out opposition and all other pleadings pertinent thereto is hereby ordered stricken out of the record.

The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic validity thereof. The testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsicvalidity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966).

To establish conclusively as against everyone and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings . . . for the probate of a will. The judgment in such proceedings determines and can determine nothing more. (Alemany, et al. vs. CFI of Manila, 3 Phil. 424).

Oppositors would want the court a quo to dismiss petition for probate on the ground that the testator had impliedly revoked his will by selling, prior to his death, the lands disposed of therein.

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing the validity of the testamentary provisions is another.itc-alf The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous: in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy.itc-alf (Fernandez, et al. vs. Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L-23662, October 12, 1967.)

In their brief, oppositors do not take issue with the court a quo's finding that they "have no relationship whatsoever within the fifth degree as provided by law and therefore . . . are totally (sic) strangers to the deceased whose will is under probate." They do not attempt to show that they have some interest in the estate which must be protected. The uncontradicted evidence, consisting of certified true copies of the parties' baptism and marriage certificates, support the said court's finding in this respect.

It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L- 18753, March 26, 1965.)

The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.)

Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on the ground that the order appealed from is interlocutory. We deferred action on the motion until after the brief of both parties had been filed. The motion, although now practically academic in view of our resolution of the main issue involved, must be denied, since the order of the lower court striking out appellants' opposition to the probate of the will on the ground that they have no personality to intervene in the case, was final and therefore appealable order insofar as they were concerned.

The order appealed from is hereby affirmed, with costs against oppositors- appellants.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-61700 September 14, 1987

PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners, vs.HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO SANTERO, respondents.

 

PARAS, J.:

This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance filed by private respondents. Said order reads as follows:

Acting on the Motion For Allowance dated June 30, 1982 filed by Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero, thru their guardian, Anselma Diaz, the Opposition thereto dated July 8, 1982 filed by the oppositors, the Reply to Opposition dated July 12, 1982 filed by movant Anselma Diaz and the Rejoinder dated July 26, 1982 filed by the oppositors, the Court was constrained to examine the Motion For Allowance filed by the herein movant last year wherein the ground cited was for support which included educational expenses, clothing and medical necessities, which was granted and said minors were given an allowance prayed for in their motion.

In the Motion For Allowance in question guardian-movant Anselma Diaz only followed the precedent of the Court which granted a similar motion last year to be spent for the school expenses of her wards. In their opposition the oppositors contend that the wards for whom allowance is sought are no longer schooling and have attained majority age so that they are no longer under guardianship. They likewise allege that the administrator does not have sufficient funds to cover the said allowance because whatever funds are in the hands of the administrator, they constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit property from which said administrator derives the only income of the intestate estate of Pablo Santero, et al.

In the Reply filed by the guardian-movant, she admitted some of her children are of age and not enrolled for the first semester due to lack of funds but will be enrolled as soon as they are given the requested allowances. She cited Article 290 of the Civil Code providing that:

Support is everything that is indispensable for substance, dwelling, clothing and medical attendance, according to the 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 trade or vocation, even beyond the age of majority.'

citing also Section 3 of Rule 83 of the Rules of Court which provides:

Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the Court, such allowance as provided by law.'

From the foregoing discussion alone, the Court cannot deviate from its duty to give the allowance sought by the wards, the fact that they need further education which should have been provided to them if their deceased father were alive.

On the allegation that the funds from which the allowance would be derived are trust funds, the Court, time and again had emphasized that the estate of the Santeros is quite big and the amount to be released for allowances is indeed insignificant and which can easily be replaced from its general fund if the so-called trust fund is adjudicated to the oppositors.

WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero are hereby granted an allowance of two thousand (P2,000.00) pesos each for tuition fees, clothing materials and subsistence out of any available funds in the hands of the administrator who is ordered to reimburse to them the said amount after this order shall have become final to enable the oppositors to file their appeal by certiorari if they so desire within the reglementary period.

SO ORDERED.

Bacoor, Cavite, July 28, 1982.

ILDEFONSO M. BLEZA

Executive Judge

(pp. 35-36, Rollo)

It appears from the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the children begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are four of the seven children begotten by the same Pablo Santero with Anselma Diaz. Both sets of children are the natural children of the late Pablo Santero since neither of their mothers, was married to their father Pablo. Pablo Santero in turn, who died on November 30, 1973 was the only legitimate son of Pascual Santero who died in 1970 and Simona Pamuti Vda. de Santero who died in 1976.

Meanwhile before We could act on the instant petition private respondents filed another Motion for Allowance dated March 25, 1985 with the respondent court to include Juanita, Estelita and Pedrito all surnamed Santero as children of the late Pablo Santero with Anselma Diaz praying that an order be granted directing the administrator Reynaldo C. Evaristo, to deliver the sum of P6,000.00 to each of the seven (7) children of Anselma Diaz as their allowance from the estate of Pablo Santero. The respondent Court granted the motion of the private respondents but oppositors (petitioners herein) asked the court to reconsider said Order.

On September 10, 1985, an Amended Order was issued by respondent Court directing Anselma Diaz to submit her clarification or explanation as to the additional three (3) children of Anselma Diaz included in the motion. In compliance therewith Anselma Diaz filed her "Clarification" stating among others that in her previous motions, only the last four minor children as represented by the mother, Anselma Diaz were included in the motion for support and her first three (3) children who were then of age should have been included since all her children have the right to receive allowance as advance payment of their shares in the inheritance of Pablo Santero under Art. 188, of the New Civil Code.

On October 15, 1985, petitioners herein filed their Motion to Admit Supplemental Petition opposing the inclusion of three (3) more heirs. We denied that "Motion for Extension of Time to file their Supplemental Petition" as per Our Resolution dated October 23, 1985.

On November 11, 1985, another Order was issued by the respondent court directing the administrator of the estate to get back the allowance of the three additional recipients or children of Anselma Diaz apparently based on the oppositors' (petitioners herein) "Urgent Motion to Direct the Administrator to Withhold Disbursement of Allowance to the Movants."

The issues now being raised in this present Petition are:

1. Whether or not respondent court acted with abuse of discretion amounting to lack of jurisdiction in granting the allowance to the respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each despite the fact that all of them are not minors and all are gainfully employed with the exception of Miguel.

2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based on the allegations of the said respondents that the abovenamed wards are still schooling and they are in actual need of money to defray their school expenses for 1982-83 when the truth is that they are no longer schooling.

3. Whether or not respondent Court acted with abuse of discretion in granting the motion for allowance without conducting a hearing thereon, to determine the truth of allegations of the private respondents.

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. Petitioners also allege that there was misrepresentation on the part of the guardian in asking for allowance for tuition fees, books and other school materials and other miscellaneous expenses for school term 1982-83 because these wards have already attained majority age so that they are no longer under guardianship. They further allege that the administrator of the estate of Pablo Santero does not have sufficient funds to cover said allowance because whatever funds are in the hands of the administrator constitute funds

held in trust for the benefit of whoever will be adjudged as owners of the Kawit properties from where these funds now held by the administrator are derived.

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 question of whether or not the petitioners and private respondents are entitled to inherit by right of representation from their grandparents more particularly from Simona Pamuti was settled by Us in the related case of "Anselma Diaz, et al. vs. Felisa Pamuti-Jardin" (G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992, petitioners and private respondents are excluded from the intestate estate of Simona Pamuti Vda. de Santero.

The present petition obviously lacks merit.

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).

It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion was duly received by the lawyer, Atty. Beltran as he filed an opposition thereto on the same date of hearing of the motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The respondent court in granting the motion for allowance merely "followed the precedentof the court which granted a similar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" (petitioners and private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several orders. (Annex 1 to Annex 4).

WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed judgment is AFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6622             July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administrator-appellant, vs.JUAN DE BORJA, ET AL., oppositors-appellees.

E. V. Filamor for appellant.Juan de Borja for himself and co-appellees.

FELIX, J.:

The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of property. Intestate proceedings must have followed, and the pre-war records of the case either burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de Borja was already the administrator of the Intestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja, was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand, assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said deceased on the ground that his interests were conflicting with that of his brother's estate he was later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the approval of the statement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A). Said agreement, translated into English, reads as follows:

1. All the accounts submitted and those that are to be submitted corresponding to this year will be considered approved;

2. No heir shall claim anything of the harvests from the lands in Cainta that came from Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be considered as deposited in conjunction with the other properties of the intestate and shall form part of the mass without drawing any interest;

4. That it shall be understood as included in this mass the sum of twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of the price the lands and three thousand pesos (P3,000) the price of the machinery for irrigation;

5. The right, interests or participation that the deceased Quintin de Borja has or may have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included in the total mass of the inheritance of the Intestate;

6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made up as specified before in this Agreement, partition thereof will be made as follows:

From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares, and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts. (TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the war. From then on and until the termination of the war, there was a lull and state of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for reconstitution of the records of this case, the Court on December 11, 1945, ordered the reconstitution of the same, requiring the administrator to submit his report and a copy of the project of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were so inadequate and general that on February 28, 1946, they filed a motion for specification. On April 30, 1946, they also filed their

opposition to said statement of accounts alleging that the income reported in said statement was very much less than the true and actual income of the estate and that the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the statement of accounts submitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated August 9, 1949, corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their opposition to the statement of accounts filed by the administrator on the ground that same was not detailed enough to enable the interested parties to verify the same; that they cannot understand why the Intestate could suffer any loss considering that during the administration of the same by Quintin de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion was answered by the administrator contending that the Report referred to was already clear and enough, the income as well as the expenditures being specified therein; that he had to spend for the repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not true, because instead of gain there was even a shortage in the funds although said administrator had collected all his fees (honorarios) and commissions corresponding to the entire period of his incumbency; that the obligations mentioned in said report will be liquidated before the termination of the proceedings in the same manner as it is done in any other intestate case; that he was willing to submit all the receipts of the accounts for the examination of the interested parties before the Clerk or before the Court itself; that this Intestate could be terminated, the project of partition having been allowed and confirmed by the Supreme Court and that the Administrator was also desirous of terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of accounts covering the period of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending obligations in the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said statement of accounts and prayed the Court to disapprove the same and to appoint an account to go over the books of the administrator and to submit a report thereon as soon as possible. The heir Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the administrator and prayed further that said administrator be required to submit a complete accounting of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an agreement to relieve the administrator from accounting for the period of the Japanese occupation; that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no objection to the approval of the statement of accounts submitted by the administrator covering of the years 1945 to 1949.

On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja, alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and approved by the Court before and during the Japanese occupation, but the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of the province of Rizal, and his personal records were also lost during the Japanese occupation, when his house was burned; that Judge Peña who was presiding over the Court in 1945 impliedly denied the petition of heirs to require him to render an accounting for the period from 1942 to the early part of 1945, for the reason that whatever money obtained from the Estate during said period could not be made the subject of any adjudication it having been declared fiat money and without value, and ordered that the statement of accounts be presented only for the period starting from March 1, 1945. The administrator further stated that he was anxious to terminate this administration but some of the heirs had not yet complied with the conditions imposed in the project of partition which was approved by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the administrator all the lands and a document transferring in favor of the Intestate the two parcels of land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as consequence of the said dispossession the heirs of Quintin de Borja must deliver to the administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house of Feliciana Mariano or else render to the Court an accounting of the products of these properties from the time they took possession of the same in 1937 to the present; that there was a pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay before the properties

adjudicated to them would be delivered. The Court, however, ordered the administrator on December 10, 1949, to show and prove by evidence why he should not be accounts the proceeds of his administration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in Paragraph III of the project of partition, which were the only property in her care, on the date that she would expect the delivery to her of her share in the inheritance from her deceased parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their inheritance in the estate, tendering to the administrator a document ceding and transferring to the latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February 8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligation as may be ordered by the Court after a hearing on the controverted accounts of the administrator. The Court considered the fact that the heirs had complied with the requirement imposed by the Project of Partition when they tendered the document ceding and transferring the rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of terminating the proceedings as soon as practicable, observing that the Estate had been under administration for over twenty-five years already. The Court, however, deferred action on the petition filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some heirs; that the administrator Crisanto de Borja had not taken possession of the same for circumstances beyond his control; and that there also existed the sum of P70,204 which the former administrator, Quintin de Borja, received from properties that were redeemed, but which amount did not come into the hands of the present, administrator because according to reliable information, same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine National Bank. It was, therefore prayed that the administrator be required to exert the necessary effort to ascertain the identity of the person or persons who were in possession of the same amount and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate.

On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an answer to the motion of these two heirs, denying the allegation that said heir any product of the lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had always been in the possession of Francisco de Borja himself and prayed the court that the administrator be instructed to demand all the fruits and products of said property from Francisco de Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because the present proceeding was only for the approval of the statement of accounts filed by the administrator; that said motion was improper because it was asking the Court to order the administrator to perform what he was duty bound to do; and that said heirs were already barred or stopped from raising that question in view of their absolute ratification of and assent to the statement of accounts submitted by the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the project of Partition were finally delivered to the estate of said heir upon the filing of a bond for P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly belonging to the Intestate, said petition should properly be considered to gather with the final accounts of the administrator.

The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja, the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the administrator in opposing the execution of the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of accounts covering the period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional statement of

accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the administrator with having failed to include the fruits which the estate should have accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the said pleading was filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the charges therein, but later served interrogatories on the administrator relative to the averments of said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which the claim for moral damages was based, the oppositors filed an amended answer contending that inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which the claim for moral damages were based had been committed prior to the effectivity of the new Civil Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952, the administrator filed an amended counterclaim including the counsel for the oppositors as defendant.

There followed a momentary respite in the proceedings until another judge was assigned to preside over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion issued an order denying admission to administrator's amended counterclaim directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be made answerable for counterclaims. Another order was also issued on the same date dismissing the administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the same to be meritorious, yet it was a strictly private controversy between said heirs and the administrator which would not in any way affect the interest of the Intestate, and, therefore, not proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal controversies would further delay the proceedings in the case which had already lagged for almost 30 years, a situation which the Court would not countenance.

Having disposed of these pending incidents which arose out of the principal issue, that is, the disputed statement of accounts submitted by the administrator, the Court rendered judgment on September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After considering the testimonies of the witnesses presented by both parties and the available records on hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the amount which the state lost, with legal interest from the date of the judgment. On the same day, the Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that incident, the parties agreed to abide by whatever resolution the Court would make on the ownership of the funds covered by that deposit.

The issues. — Reducing the issues to bare essentials, the questions left for our determination are: (1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2) whether a claim for moral damages may be entertained in a proceeding for the settlement of an estate; (3) what may be considered as acts of maladministration and whether an administrator, as the one in the case at bar, may be held accountable for any loss or damage that the estate under his administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4) in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or damage?

I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim as:

SECTION 1. Counterclaim Defined. — A counterclaim is any claim, whether for money or otherwise, which a party may have against the opposing party. A counterclaim need not dismiss or

defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant against the adverse party which may or may not be independent from the main issue. There is no controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory and upon which the counterclaim was based were done or prepared by counsel for oppositors; and the administrator contends that as the very oppositors manifested that whatever civil liability arising from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against said lawyer, the amended counterclaim was filed against the latter not in his individual or personal capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying admission to said pleading. We differ from the view taken by the administrator. The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another — such as trustees — in their individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at.

Granting that the lawyer really employed intemperate language in the course of the hearings or in the preparation of the pleadings filed in connection with this case, the remedy against said counsel would be to have him cited for contempt of court or take other administrative measures that may be proper in the case, but certainly not a counterclaim for moral damages.

II. — Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers specifically allowed by the statutes. For it was even said that:

Probate proceedings are purely statutory and their functions limited to the control of the property upon the death of its owner, and cannot extend to the adjudication of collateral questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the administrator's counterclaim for moral damages against the oppositors, particularly against Marcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From what ever angle it may be looked at, a counterclaim for moral damages demanded by an administrator against the heirs for alleged utterances, pleadings and actuations made in the course of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into the action of incidental questions entirely foreign in probate proceedings should not be encouraged for to do otherwise would run counter to the clear intention of the law, for it was held that:

The speedy settlement of the estate of deceased persons for the benefit of the creditors and those entitled to the residue by way of inheritance or legacy after the debts and expenses of administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).

III. and IV. — This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja, on the ground that certain fruits which should have been accrued to the estate were unaccounted for, which charge the administrator denied. After a protracted and extensive hearing on the matter, the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration, held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported income which the estate should have received. The evidence presented in the court below bear out the following facts:

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to have received for the estate the following rentals:

Period of timeTotal

rentals

Annualmonthly

rental

March to December, 1945 P3,085.00 P51.42

January to December, 1946

4,980.00 69.17

January to December, 1947

8,330.00 115.70

January to December, 1948

9,000.00 125.00

January to December, 1949

8,840.00 122.77

January to December, 1950

    6,060.00 184.16

                Total P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to November 15, 1949, and who testified that he paid rentals on said apartments as follows:

1945

Door No. 1541 (basement)

February P20.00 Door No. 1543

March 20.00 For 7 months at P300

April 60.00 a month P2,100.00

May-December   800.00

Total P900.00

1946

January-December

P1,200.00 January-December

P4,080.00

1947

January P100.00 January P380.00

February 100.00 February 380.00

March 180.00 March 1-15 190.00

April-December 1,140.00 March 16-December

4,085.00

P1,820.00 P5,035.00

1948

January-December

P1,920.00 January-December

P5,150.00

1949

January-November 15

P1,680.00 January-December

P4,315.00

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were not controverted or disputed by the administrator but claim that said tenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this contention — that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting to note that Pedro Enriquez is the same person who appeared to be the administrator's collector, duly authorized to receive the rentals from this Azcarraga property and for which services, said Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are

to believe appellant's contention, aside from the commission that Pedro Enriquez received he also sublet the apartments he was occupying at a very much higher rate than that he actually paid the estate without the knowledge of the administrator or with his approval. As the administrator also seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he never kept a ledger or book of entry for amounts received for the estate, We find no record of the rentals the lessees of the other doors were paying. It was, however, brought about at the hearing that the 6 doors of this building are of the same sizes and construction and the lower Court based its computation of the amount this property should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have taken cognizance of these rates and received the same for the benefit of the estate he was administering, considering the fact that he used to make trips to Manila usually once a month and for which he charged to the estate P8 as transportation expenses for every trip.

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment from September to November, 1949, and he also paid P160 for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper floor would cost P230 which should be deducted, even if the computation of the lower Court would have to be followed.

There being no proper evidence to show that the administrator collected more rentals than those reported by him, except in the instance already mentioned, We are reluctant to bold him accountable in the amount for which he was held liable by the lower Court, and We think that under the circumstances it would be more just to add to the sum reported by the administrator as received by him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors remained under his administration. For the period from January to June, 1950, that the entire property was still administered by him, the administrator reported to have received for the 2 oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which belongs to the oppositors and should be taken from the amount reported by the administrator.

The lower Court computed at P40 a month the pre-war rental admittedly received for every apartment, the income that said property would have earned from 1941 to 1944, or a total of P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the year 1941.

(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of the agreement entered into by the heirs, this property was turned over by the estate of Quintin de Borja to the intestate and formed part of the general mass of said estate. The report of the administrator failed to disclose any return from this property alleging that he had not taken possession of the same. He does not deny however that he knew of the existence of this land but claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he did not take any further action to recover the same.

To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property from 1940 to 1950, the oppositors presented several witnesses, among them was an old man, Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the position of overseer (encargado) of this land but he was notable to assume the same due to the death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts on which he was to testify were false, he went instead to the house of one of the daughters of Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).

Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan, testified that they were some of the tenants of the Mayapyap property; that they were paying their shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator was not able to contradict, and the

lower Court found no reason why the administrator would fail to take possession of this property considering that this was even the subject of the agreement of February 16, 1940, executed by the heirs of the Intestate.

The lower Court, giving due credence to the testimonies of the witnesses for the oppositors, computed the loss the estate suffered in the form of unreported income from the rice lands for 10 years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which should have accrued to the estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors.

(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which, according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and 100 hectares dedicated to the planting of upland rice. It has also timberland and forest which produce considerable amount of trees and firewoods. From the said property which has an assessed value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator reported the following:

Year Income

Expenditure (not including administration'

s fees

1945........... P625.00 P1,310.42

1946.............

1,800.00 3,471.00

1947.............

2,550.00 2,912.91

1948.............

1,828.00 3,311.88

1949.............

3,204.50 4,792.09

1950.............

2,082.00 2,940.91

P12,089.50

P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the administrator did not file the true income of the property, they presented several witnesses who testified that there were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes of palay yearly. After the administrator had presented witnesses to refute the facts previously testified to by the witnesses for the oppositors, the Court held that the report of the administrator did not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000 cavanes every year — for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which will be P13,276.45 which the administrator is held liable to pay the heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this property yields considerable amount of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able to present any proof of sales made after these years, if there were any and the administrator was held accountable to the oppositors for only P1,918.75.

(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66 centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951. The oppositors protested against this report and presented witnesses to disprove the same.

Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew the tenants working on the property and also knows that both lands are of the same class, and that an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at the least. The administrator failed to overcome this testimony. The lower Court considering the facts testified to by this witness made a finding that the property belonging to this Intestate was actually occupied by several persons accommodating 13 ½ cavanes of seedlings; that as for every cavan of seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of 7 years — from 1941 to 1950, excluding the 3 years of war — the corresponding earning of the estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of which or P3,352.75 the administrator is held liable to pay to the oppositors.

(e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for his failure to pay on time the taxes imposed on the properties under his administration. He advanced the reason that he lagged in the payment of those tax obligations because of lack of cash balance for the estate. The oppositors, however, presented evidence that on October 29, 1939, the administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise, for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property was sold at public auction and the administrator had to redeem the same at P3,295.48, although the amount that should have been paid was only P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these surcharges and penalties to the negligence of the administrator, the lower Court adjudged him liable to pay the oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or P341.74.

(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe containing P15,000 belonging to the estate under his administration. The administrator contended that this loss was already proved to the satisfaction of the Court who, approved the same by order of January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested the genuineness of this order and presented on April 21, 1950, an expert witness who conducted several tests to determine the probable age of the questioned document, and arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However, another expert witness presented by the administrator contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro Manzañares was not supported by authorities and was merely the result of his own theory, as there was no method yet discovered that would determine the age of a document, for every document has its own reaction to different chemicals used in the tests. There is, however, another fact that called the attention of the lower Court: the administrator testified that the money and other papers delivered by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator justified the existence of these valuables by asserting that these properties were locked by Juliana de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his house, together with the safe, was burned. This line of reasoning is really subject to doubt and the lower Court opined, that it runs counter to the ordinary course of human behaviour for an administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other documents belonging to the estate under his administration, which delivery has receipted for, rather than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6, 1943, the Court required Crisanto de Borja to appear before the Court of examination of the other heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still order the inspection of the safe if there was really an order approving the loss of those P15,000. We must not forget, in this connection, that the records of this case were burned and that at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court also found no reason why the administrator should keep in his such amount of money, for ordinary prudence would dictate that as an administration funds that come into his possession in a fiduciary capacity should not be mingled with his personal funds and should have been deposited in the Bank in the name of the intestate. The administrator was held responsible for this loss and ordered to pay ¼ thereof, or the sum of P3,750.

(g) Unauthorized expenditures —

1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the administrator alleged that he needed her services to keep receipts and records for him, and that he did not secure first the authorization from the court before making these disbursements because it was merely a pure administrative function.

The keeping of receipts and retaining in his custody records connected with the management of the properties under administration is a duty that properly belongs to the administrator, necessary to support the statement of accounts that he is obliged to submit to the court for approval. If ever his wife took charge of the safekeeping of these receipts and for which she should be compensated, the same should be taken from his fee. This disbursement was disallowed by the Court for being unauthorized and the administrator required to pay the oppositors ¼, thereof or P532.50.

2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forest-guards were found justified, although un authorized, as they appear to be reasonable and necessary for the care and preservation of the Intestate.

3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to special policemen amounting to P1,509. Appellant contended that he sought for the services of Macario Kamungol and others to act as special policemen during harvest time because most of the workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they were likely to run away with the harvest without giving the share of the estate if they were not policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the proper thing for the administrator to do would have been to secure the previous authorization from the Court if he failed to secure the help of the local police. He should be held liable for this unauthorized expenditure and pay the heirs of Quintin de Borja ¼ thereof or P377.25.

4. From the year 1942 when his house was burned, the administrator and his family took shelter at the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was adjudicated to his father, Francisco de Borja. This property, however, remained under his administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and thatchers. Although it is true that Rule 85, section 2 provides that:

SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. — An executor or administrator shall maintain in tenant able repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

yet considering that during his occupancy of the said "casa solariega" he was not paying any rental at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said house. Appellant asserted that had he and his family not occupied the same, they would have to pay someone to watch and take care of said house. But this will not excuse him from this responsibility for the disbursements he made in connection with the aforementioned repairs because even if he stayed in another house, he would have had to pay rentals or else take charge also of expenses for the repairs of his residence. The administrator should be held liable to the oppositors in the amount of P366.28.

5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were rejected by the lower court on the ground that they were all unsigned although some were dated. The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26 which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but for the roofing of the house and another building and shall be allowed. Consequently, the sum of P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures rejected as unauthorized to wit:

Exhibit L-59 ............. P500.00     Yek Wing

Exhibit L-60 ............. 616.00     Yek Wing

Exhibit L-61 ............. 600.00     Yek Wing

Exhibit L-62 ............. 840.00     Yek Wing

Exhibit L-63 ............. 180.00     Yek Wing

Exhibit Q-2 .............     323.00     scale "Howe"

       P3,059.00

Total ......................

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.

6. On the expenses for planting in the Cainta ricefields: — In his statement of accounts, appellant reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were advanced by the estate and liquidated after each harvest. But the report, except for the agricultural year 1950 contained nothing of the payments that the tenants should have made. If the total expenses for said planting amounted to P5,977, ½ thereof or P2,988.50 should have been paid by the tenants as their share of such expenditures, and as P965 was reported by the administrator as paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the administrator is responsible and should pay the oppositors ¼ thereof or P505.87.

7. On the transportation expenses of the administrator: — It appears that from the year 1945 to 1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un receipted disbursements were correspondingly itemized, a typical example of which is as follows:

1950

Gastos de viaje del administrador From Pateros

To Pasig ................ 50 x P4.00 = P200.00

To Manila ...............50 x

P10.00 = P500.00

To Cainta ................ 8 x P8.00 = P64.00

To Jalajala ............... 5 x P35.00 = P175.00

= P399.00

(Exhibit W-54).

From the report of the administrator, We are being made to believe that the Intestate estate is a losing proposition and assuming arguendo that this is true, that precarious financial condition which he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to justify these charges by contending that he used his own car in making those trips to Manila, Pasig and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that it was during this period that the administrator failed or refused to take cognizance of the prevailing rentals of commercial places in Manila that caused certain loss to the estate and for which he was accordingly held responsible. For the reason that the alleged disbursements made for transportation expenses cannot be said to be economical, the lower Court held that the administrator should be held liable to the oppositors for ¼ thereof or the sum of P1,292.50, though We think that this sum should still be reduced to P500.

8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the Intestate should only shoulder ¹/3 of the said expense, but as the tenants who testified during the hearing of the matter testified that those printed forms were not being used, the Court adjudged the administrator personally responsible for this amount. The records reveal, that this printed form was not utilized because the tenants refused to sign any, and We can presume that when the administrator ordered for the printing of the same, he did not foresee this situation. As there is no showing that said printed contracts were used by another and that they are still in the possession of the administrator which could be utilized anytime, this disbursement may be allowed.

The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for his transportation expenses as one of the two commissioners who prepared the Project of Partition. The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of the commissioners. The administrator, however, alleged that he used this amount for the payment of certain fees necessary in

connection with the approval of the proposed plan of the Azcarraga property which was then being processed in the City Engineer's Office. From that testimony, it would seem that appellant could even go to the extent of disobeying the order of the Court specifying for what purpose that amount should be appropriated and took upon himself the task of judging for what it will serve best. Since he was not able to show or prove that the money intended and ordered by the Court to be paid for the transportation expenses of the commissioners was spent for the benefit of the estate as claimed, the administrator should be held responsible therefor and pay to the oppositors ¼ of P375 or the sum ofP93.75.

The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay ¼ of said amount or P10 to the oppositors.

The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional services rendered for the defense of the administrator in G.R. No. L-4179, which was decided against him, with costs. The lower Court disallowed this disbursement on the ground that this Court provided that the costs of that litigation should not be borne by the estate but by the administrator himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has been filed by the prevailing party, shall be awarded to said party and will only include his fee and that of his attorney for their appearance which shall not be more than P40; expenses for the printing and the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the taking of depositions and other expenses connected with the appearance of witnesses or for lawful fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that case, which this Court ordered to be chargeable personally against the administrator are not recoverable by the latter, with more reason this item could not be charged against the Intestate. Consequently, the administrator should pay the oppositors ¼ of the sum of P550 or P137.50.

(e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of the funds still in the possession of the administrator.

In the statement of accounts submitted by the administrator, there appeared a cash balance of P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a total of P3,632.32 after deducting the same from the cash in the possession of the administrator, there will only be a remainder of P134.98.

The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand, there will be a total of P1,034.98, ¼, of which or P258.74 properly belongs to the oppositors. However, as there is only a residue of P134.98 in the hands of the administrator and dividing it among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 — the amount deducted from them as taxes but which the Court ordered to be returned to them — plus P44.99 or a total of P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have already received this amount in satisfaction of this item, no other sum can be chargeable against the administrator.

(f) The probate Court also ordered the administrator to render an accounting of his administration during the Japanese occupation on the ground that although appellant maintained that whatever money he received during that period is worthless, same having been declared without any value, yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation, and articles of prime necessity as rice and firewood commanded high prices and were paid with jewels or other valuables.

But We must not forget that in his order of December 11, 1945, Judge Peña required the administrator to render an accounting of his administration only from March 1, 1945, to December of the same year without

ordering said administrator to include therein the occupation period. Although the Court below mentioned the condition then prevailing during the war-years, We cannot simply presume, in the absence of proof to that effect, that the administrator received such valuables or properties for the use or in exchange of any asset or produce of the Intestate, and in view of the aforementioned order of Judge Peña, which We find no reason to disturb, We see no practical reason for requiring appellant to account for those occupation years when everything was affected by the abnormal conditions created by the war. The records of the Philippine National Bank show that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio, his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the Intestate and We do not believe that the oppositors or any of the heirs would be interested in an accounting for the purpose of dividing or distributing this deposit.

(g) On the sum of P13,294 for administrator's fees:

It is not disputed that the administrator set aside for himself and collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to the fact that this appropriated amount was taken without the order or previous approval by the probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto de Borja is far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also to a certain amount as compensation for the work and services he has rendered as such. Now, considering the extent and size of the estate, the amount involved and the nature of the properties under administration, the amount collected by the administrator for his compensation at P200 a month is not unreasonable and should therefore be allowed.

It might be argued against this disbursement that the records are replete with instances of highly irregular practices of the administrator, such as the pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; that admittedly he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals, and although We certainly agree with the probate Court in finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed.

Recapitulation. — Taking all the matters threshed herein together, the administrator is held liable to pay to the heirs of Quintin de Borja the following:

Under Paragraphs III and IV:

(a) ...............................................................................

P7,084.27

(b) ...............................................................................

12,175.00

(c) ...............................................................................

16,113.95

(d) ...............................................................................

3,352.75

(e) ...............................................................................

341.74

(f) ................................................................................

3,750.00

(g) 1 .....................................................................

532.50

      2 .....................................................................

377.25

      3 .....................................................................

366.28

      4 .....................................................................

869.92

      5 .....................................................................

505.87

      6 .....................................................................

500.00

      7-a

          b ..................................................................

93.75

          c ..................................................................

10.00

          d ...................................................................

      137.50

P46,210.00

In view of the foregoing, the decision appealed from is modified by reducing the amount that the administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and Endencia, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-33007 June 18, 1976

VICENTE MIRANDA, Administrator of the Intestate Estate of Hilarion Dydongco, petitioner, vs.HON. COURT OF APPEALS, HON. FRANCISCO TANTUICO, JR., Judge of the Court of First Instance of Cebu, Branch VI, DY CHUN, DY SUAT HONG, DY LEE, DY SEKO, TAN HO NOLASCO DYCOTHAY (deceased), substituted by JOSE KOO ENG LIN DY, as Administrator of the Intestate Estate of NOLASCO DYCOTHAY, "AGUSAN COMMERCIAL", "EAST MINDANAO LUMBER CO" "HIAP BEE", and "EAST MINDANAO LUMBER CO., INC.", respondents.

Pelaez, Pelaez & Pelaez for petitioner.

Tolentino, Garcia, Cruz & Reyes, Koh Law Offices and Cipriano C. Alviso, Sr. for private respondents.

 

TEEHANKEE, J:

The Court sets aside respondent appellate court's decision which unprecedentedly held that respondent judge could four years later and beyond the thirty-day reglementary period change, alter and amend his predecessor's judgment on the merits for recovery of properties with accounting and "promulgate another decision" as if were a mere interlocutory order or process. When this Court in 1968 held respondents' proposed appeal as "premature" and remanded the case for implementation of the accounting phase as a mere incident and necessary consequence, so that a single appeal could be taken from both aspects of the judgment for recovery of properties and accounting, it was not to reopen the case all over and have respondent judge assume reviewing if not appellate authority over his predecessor's judgment but to have respondent judge enforce, consider and act on the accounting as ordered in the judgment for the completion of the relief therein ordered. For the guidance of the bench and bar, the Court declares as abandoned the doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and appealable (without need of awaiting the accounting) and would become final and executory if not appealed within the reglementary period.

From the records of the case, 1 the factual antecedents are undisputed, as follows:

In Special Proceedings No. 2205-R of the Cebu court of first instance for the settlement of the intestate estate of Hilarion Dydongco, deceased, (a Philippine resident who died in China sometime in 1941) petitioner Vicente Miranda was appointed as administrator. In 1962, petitioner as such administrator filed Civil Case No. R-7793 in the same Cebu court of first instance against the private respondents (or their predecessors) for recovery of properties of the decedent alleged to have been fraudulently and in bad faith and in breach of their fiduciary trust, concealed, appropriated and converted as their own by respondents. The suit for recovery had been filed by petitioner-administrator after the principal respondents pursuant to Rule 88, section 6 had been cited by the intestate court to appear and to be examined as to documents, papers, properties, funds and other valuables deposited and left in trust with them by the decedent before his death. 2

In his complaint for recovery, petitioner-administrator alleged that "prior to and at the time of his death in China sometime in 1941, Hilarion Dydongco, who resided in the Philippines since the beginning of the century, had, in Butuan, Agusan and Cebu City, well-developed and established business and commercial enterprises with substantial bank deposits and about 127 parcels of land or property; that Hilarion Dydongco went to China, in 1934, and, thereafter, became seriously ill; that, at that time, his children, Dy Chun and Dy Suat Hong (both defendants in said case R-7793) as well as Dy Sick Lee (who died subsequently and is not a defendant in case No. R-7793) and his protegees Dy Bee and Dy Seko were working as his Manager and/or employees in the aforementioned business establishments; that taking advantage of the absence and bad condition of the health of Hilarion Dydongco, particularly of his subsequent death, the defendants therein took over said business, including its assets, goods, merchandise, chattels, machinery, stock-in-trade, cash on hand and in banks, amounts receivable and other properties of the deceased, as well as his store known as "Dydongco Store," and its branches, and organized first, a fake partnership with the business name of "Agusan Commercial Company," and then the East Mindanao Lumber Co., which operated and did business, with the capital, assets, stock-in-trade, merchandise, funds and other property of said deceased; that with funds belonging to the latter, the defendants therein moreover purchased several parcels of land, on one of which a 20-door apartment building was constructed, with funds of the same nature, and let to Chinese tenants and other lessees; that the defendants therein had received and are receiving the rentals, earnings and profits derived from said business and property of the deceased; and that said defendants hold, manage and operate the aforementioned business, properties and income in trust for the Intestate Estate of Hilarion Dydongco but have not rendered any accounting thereof." 3

Petitioner-administrator prayed that "judgment be rendered declaring that said business, assets, income and other property, are in the possession and under the management and control of said defendants as mere trustees thereof, and sentencing them to turnover and deliver the same to him, as Administrator of the Intestate Estate of Hilarion Dydongco as well as to render accounts and to execute the corresponding deeds of conveyance, in addition to paying damages and the costs." 4

After a protracted trial, Hon. Jose M. Mendoza (as presiding judge in whose court the intestate proceedings for settlement of the decedent's estate were likewise pending) rendered a sixty-nine page decision on July 26, 1965finding that most of petitioner- administrator's allegations had been duly proven and sentenced respondents (as defendants) to deliver to petitioner-administrator "all properties found by the court to belong to the estate," "to render full, accurate and correct accounting of all the fuits and proceeds of (such) properties" during their period of possession ("from 1935 until the present date") and to pay P60,000 exemplary damages to the two heiresses found to have been defrauded and P30,000 attorney's fees and costs. 5

Respondents (as defendants) took steps to perfect their appeal from Judge Mendoza's adverse decision within the reglementary thirty-day period. After submitting their record on appeal, however, they filed a motion for reconsideration and new trial which was heard and denied per Judge Mendoza's order of October 18, 1965, Respondents thereafter sought to revive their record on appeal and submit additional pages thereof but Judge Mendoza held that their filing of their motion for reconsideration was an abandonment of their proposed earlier appeal and that his decision had become final and executory.

Reconsideration having been denied, herein respondents then filed on December 21, 1965 a petition with this Court for the issuance of writ of certiorari, prohibition and mandamus to annul Judge Mendoza's orders disallowing their appeal with mandatory injunction to give due course to their appeal and this Court meanwhile enjoined the enforcement and execution of the challenged orders. The case was docketed as Dy Chun et al. vs. Mendoza. 6

The Court in its decision of October 4, 1968 in the said case of Dy Chun vs. Mendoza aborted the question of timeliness of respondents' proposed appeal, remarking that "(T)he petition herein and the answer thereto filed by respondents discuss rather extensively the question whether or not petitioners had perfected their appeal in the lower court within the reglementary period. We find it, however, unnecessary to pass upon said question, for the reason presently to be stated."

This Court therein instead ruled that "(A)lthough declaring that most of the properties involved in the litigation belong to the estate of Hilarion Dydongco, the decision of respondent Judge, dated July 30, 1965, moreover, required petitioners herein to render a full, accurate and complete accounting of all the fuits and proceeds' of

said properties. After analyzing previous rulings thereon, this Court declared, in Fuentebella v. Carrascoso (G.R. No. 48102, May 27, 1942. See also Salazar vs. Torres, L-13711, May 25, 1960; Zaldarriaga v. Enriquez, L13252, April 29, 1961; Zaldarriaga v. Zaldarriaga, L-13424,, May 31, 1961 that a decision of such nature is interlocutory in character, because it does not dispose of the action in its entirety and leaves something to be done to complete the relief sought and that, accordingly, it is not appealable, until after the adjudications necessity the completion of said relief shall have been mad. Indeed, the very counsel for petitioners herein now accept this view and concede that petitioners' appeal had been taken prematurely." 7

Hence, this Court therein ordered and adjudged that "this case should be as it is hereby dismissed and the writ prayed for with costs against petitioners herein. The writ of preliminary injuction issued in this case on January 1 , 1966, is, accordingly, dissolved." 8

It should be noted that this Court's judgment of October 4, 1968 in Dy Chun vs. Mendoza in dismissing herein respondents' petition and denying the writ of certiorari, prohibition and mandamus prayed for with costs against them (as petitioners therein) on the premise that their appeal should be taken after the rendition of the accountingof all fruits and proceeds of the properties adjudged in Judge Mendoza's decision of July 26, 1965 to belong to the decedent's estate, nevertheless the writ of preliminary injunction issued earlier on January 18, 1966 enjoining the enforcement and execution of Judge Mendoza's said decision.

The case was remanded to the Cebu court of first instance as the court of origin — for the rendition of "a full, accurate and complete of all the fruits and proceeds" of the properties declared in Judge Mendoza's July 26, 1965 decision to belong to the decedent's estate, i.e. for "the adjudications necessary for the completion of said relief(as granted in the decision)", to use the very language of this Court in Dy Chun vs. Mendoza, supra.

This time around, however, Judge Mendoza (who had since been promoted as associate justice of the Court of Appeals and thereafter retired upon reaching the age of seventy) no longer presided the lower court, having been succeeded by respondent Judge Francisco S. Tantuico, Jr. as presiding judge of the lower court (but who likewise — to get ahead of the story-after rendering the questioned amended decision of October 4, 1969 — has since been also promoted on September 21, 1973, to and is presenting associate justice of the Court of Appeals).

Back in the court of origin in 1969 after seven years (the case was first filed in 1962), the parties filed several motions following this Court's October 4, 1968 decision in Dy Chun vs. Mendoza, as follows:

(1) Petitioner under date of January 29, 1969 filed a motion for execution of the portion of Judge Mendoza's decision ordering respondents (as defendants) to deliver to petitioner all the properties adjudged belong to the decedent's estate (citing the fact of dismissal of respondents' petition for certiorari and mandamus and dissolution of the preliminary injunction enjoining enforcement and execution of Judge Mendoza's decision in Dy Chun vs. Mendoza and for an order directing respondents to render the required in the decision within thirty (30) days. Several pleadings were filed by the parties in opposition and in rejoinder;

(2) Respondents Dy Chun, Vicente Dy Seko, Silvestre Dy Hee and the administrator of the estate of Nolasco Dycothay filed under date of March 29, 1969 their urgent motion wherein they prayed that their previousopposition of March 14, 1969 to petitioner's motion for execution be captioned and considered further as a "motion for and reconsideration and new trial;" 9 which was in effect a second motion for reconsideration almost four year afterJudge Mendoza had denied per his order of October 18, 1965 their first motion for reconsideration almost four years after Judge Mendoza had denied per his order of October 18, 1965; and

(3) Respondents East Mindanao Lumber Co. Inc., Tan Ho and Dy Suat Hong further filed under date of May 5, 1969 their motion for reconsideration as "a supplement of their motion for reconsideration of the decision dated July 26,.1965," wherein almost four years afterwards they prayed the lower court "to reconsider and set aside its decision dated July 26, 1965 and to dismiss the complaint" 10 notwithstanding that their first motion for reconsideration to the same end and effect had already been turned down by Judge Mendoza per his order of October, 18, 1965 and they had sought to appeal said decision resulting in this Court's 1968 decision in Dy Chun vs. Mendoza that their appeal from said decision should await their rendition of for completion of relief and the lower court's action thereon.

Respondent Judge Tantuico who had succeeded Judge Mendoza as presiding judge of the lower court resolved the three motions in a 44-page amended decision dated October 4, 1969 rendered over four years after his predecessor Judge Mendoza's original decision of July 26, 1965, as follows:

(1) He denied petitioner's 'emotion for partial execution of the July 26, 1965 order ... such a decision beinginterlocutory in character", 11 while agreeing with petitioner's contention "that delivery of the properties and accounting of their two fruits are two distinct acts. . . The accounting is not dependent upon delivery ... ;" 12 and ordered delivery of "all the other properties not affected by [his] amendments" within forty-five days;

(2) He denied as without merit the motion for new trial of respondents Dy Chun, et al. as well as their claims therein of lack of jurisdiction of the court to render the judgment; and

(3) He granted a major part of the motion for reconsideration filed by respondents East Mindanao Lumber Co., Inc. and without new trial or reception of new or additional evidence reviewed, reversed and set aside his predecessor's appreciation of the evidence and pronouncements on the credibility of the witnesses (who were not heard at all by him) and substituted his own appreciation of the evidence and impression of the witnesses' credibility or lack thereof and therefore reversed Judge Mendoza's original decision of July 26, 1965 on threemajor points involving very valuable properties with an alleged estimated value of P5 million at the filing of the petition in January, 1971 14 on the premise that "interlocutory orders are subject to change in the discretion of the court" and "it is only fit and proper that this court believe in every part of the judgment he is to execute." 15

Respondent Judge Tantuico thus altered and changed his predecessor Judge Mendoza's original decision of July 26, 1965 in his amended decision of October 4, 1969 by excluding certain valuable properties from the estate of the decedent and absolving certain respondents from the obligation of turning. owner the possession to petitioner,reversing Judge Mendoza's judgment holding respondent Dy Suat Hong to be a builder in bad faith, and reducingthe P60,000 exemplary damages to P30,000. (see paragraphs 1, 2, 3 and 7 of the dispositive part of his amended decision as reproduced in the footnote. 16 ). Acting on petitioner's motion for rendition of the accounting, he ordered respondents to submit "the written inventory and accounting [of the remaining properties held to belong to the estate of the decedent] to this court within sixty (60) days from receipt of this judgment for approval." (see paragraph 5 of his amended decision 17 ). He further fixed a period of forty-five (45) days from receipt of judgment for respondents to deliver to petitioner "all the other properties not affected by the herein amendments and found by the court in the July 26, 1965 judgment to belong to the estate of Hilarion Dydongco." (see paragraph 4 of amended decision 18 ).

Petitioner assailed in an action for certiorari 19, respondent judge's authority to issue such amended decision substantially changing his predecessor's original decision (which merely awaited the rendition of accounting for completion of the relief therein adjudicated of declaring the properties in possession of respondents to belong to the decedent's estate). The action was referred by this Court to the Court of Appeals, which rendered its challenged decision of September 21, 1970 and resolution of December 23, 1970 denying reconsideration.

Respondent appellate court 20 in its decision correctly if not entirely accurately depicted the parties' conflicting stands thus: "The petitioner's stand ... is that the first decision that of Judge Mendoza, is not interlocutory in nature, but is one which is final in character and which left nothing to be done except for the requisite matter of accounting. ... On the other hand, the respondents herein maintain that the original decision of the former presiding judge is merely interlocutory in nature, as there remains something also to be done, citing therein for main support of this contention, the decision . . . of the Supreme Court ... in Dy Chun vs. Mendoza." 21

Respondent appellate court, relying on Dy Chun vs. Mendoza, found for respondents, holding that "(I)n view of this ruling of the Supreme Court, expressly declaring that the decision in question of former Judge Jose M. Mendoza is merely interlocutory in character, and that the same is not appealable yet the issuance therefore of the controversial amended decision of the now respondent Judge Francisco Tantuico, Jr. could hardly be said to have been issued with grave abuse of discretion, much less, without or in excess of jurisdiction. The disputed decision (first) of the former Presiding Judge Jose M. Mendoza, being interlocutory in essence, the succeeding Presiding Judge, therefore, now respondent Judge, has jurisdiction and is clothed with authority to conduct further proceedings, consider additional motions, rule oil issues presented by the parties and finally to issue any orders, processes and promulgate another decision." 22

In its split resolution denying reconsideration, with Justice Andres Reyes dissenting, respondent appellate court 23reiterated that as Judge Mendoza's original decision of July 26, 1965 was "still interlocutory," respondent Judge Tantuico had authority to change, alter or amend the decision of July 26, 1965 was "still interlocutory," respondent Judge Tantuico had authority to change, alter or amend the decision as he did over four year later per his amended decision of October 4, 1969, citing a court's "inherent power to amend and control its process and orders so as to make them conformable to law and justice." 24

The decisive issue at bar, then, is whether respondent appellate court correctly read and applied or not this Court's 1968 judgment in Dy Chun vs. Mendoza.

Restated otherwise, on the premise of this Court's judgment in Dy Chun vs. Mendoza that Judge Mendoza's decision granting petitioner the recovery of the properties which were adjudged to rightfully belong to the decedent's estate and for accounting of the fruits and proceeds thereof was "interlocutory in character" on the doctrine of Fuentebella vs. Carrascoso 25 and was "not appealable, until after the adjudications necessary for the completion of said relief shall have been made" (which view respondents through counsel expressly "accepted and conceded") —

Did this mean, as held by the appellate court, that respondent Judge Tantuico as Judge Mendoza's successor had the authority, four years later and beyond the thirty-day reglementary period and for as long as the final accounts have not been rendered and approved by him, to review, revise or reverse the original decision on the merits or to "promulgate another decision" as if it were a mere interlocutory order which affects preliminary or incidental matters and does not determine the dispute between the parties on its merits, or

Rather, did it mean that respondents' appeal from the decision on the merits granting petitioner the principal reliefof recovery of real properties (which was final and definitive in character) had to await the rendition of theaccounting and the court's approval thereof as a secondary and incidental relief and hence the only remaining orresidual authority of the lower court in the premises (no matter whether it be presided by Judge Mendoza, respondent Judge Tantuico or still another presiding judge) was and is to enforce, consider and act on theaccounting ordered in the decision, so that respondents' appeal from both aspects of the decision (for recovery of properties with accounting of fruits and proceeds) may then take its course?

The Court holds that respondent appellate court misread and misapplied this Court's 1968 judgment in Dy Chun vs. Mendoza and erred in holding that respondent Judge Tantuico could change, alter and amend his predecessor's decision on the merits for recovery of properties with accounting as if it were a mere interlocutoryorder or process, when all this Court held (applying Fuentebella, supra) was that the decision was "not appealable" until after the accounting also ordered was rendered and approved so as to complete the relief granted whereafter respondents' "premature appeal" could then be given due course from both aspects of the decision for recovery of properties and accounting of the fruits. Hence, the only remaining or residual authority of respondent judge in the premises was not to review, revise or reverse Judge Mendoza's original decision of July 26, 1965 (by submitting his own appreciation of the evidence and impression of the witnesses' credibility or lack thereof from a mere reading of the record for that of Judge Mendoza who tried the case and saw and heard the witnesses first hand) but to enforce, receive and act on the accounting as ordered in the decision for the completion of the relief therein granted.

The Court's holding is founded and based on the controlling case of Dy Chun vs. Mendoza, the pertinent provisions of the Rules of Court and their mandate that they "be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy and inexpensive determination of every action and proceeding", the very concept of final and definitive judgments as against mere interlocutory orders, and imperative considerations of public policy, stability of judgments, comity of judges of the same or coordinate courts, and of an impersonal and orderly administration of justice and system of adjudication of court litigation, as shall presently be expounded.

1. The original decision of July 26, 1965 of Judge Mendoza is manifestly a judgment determining the merits of the case, in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him and filed with the clerk of court — as defined in and required by Rule 36, section 1. 26 When respondents' appeal therefrom was ruled out of time by Judge Mendoza, and on mandamus this Court in Dy Chun vs. Mendoza declared the appeal premature, it remanded the case back to the lower court for the completion of the relief awarded in the judgment, viz, for the rendition of the accounting therein also awarded, so that thereafter respondents' "premature appeal" could be given due course from both aspects of the judgment: the principal relief of recovery of the properties in favor of the decedent's estate and the secondary and incidental relief of accounting of the fruits and proceeds of such properties.

2. This Court in thus remanding the case for the rendition of the accounting "for the completion of said relief" awarded in Judge Mendoza's judgment on the merits could not conceivably be misconstrued, as did appellate court, to give respondent judge or whoever presides the lower court carte blanche to exercise reviewing if not supervisory authority over the judicial determination and findings on the merits of his predecessor and to "promulgate another decision" in lieu thereof as if Judge Mendoza's basic decision on the merits were a mereinterlocutory order dealing with postponements, extensions, temporary restraining orders or preliminary injunctions, or deferring action on, or denying, motions to dismiss or provisional remedies applied for, instead of a definitive determination, of the main dispute between the parties.

There would be no firm and definite basis for the accounting yet to be rendered if the presiding judge or his successor could for as long as the accounting has not yet been rendered revise and amend the decision or"promulgated another decision" and thereby from time to time change and alter the basis for the accounting. Confusion worse compounded could readily ensue and there may be no end in sight where as in the case at bar127 parcels of land or property 27 are involved in the original complaint filed in 1962 and the trial judge could include or exclude from time to time the lands or properties for which an accounting must be rendered!

3. Hence, it was always been taken for granted from the lead case of Fuentebella (and all other cases adhering to it) assuming its applicability here, that the remand of the case to the trial court for rendition of the accounting of the fruits of the properties adjudged in favor of the prevailing party in order to complete the relief and have a single appeal including the accounts was for no other purpose than to render the accounting and by no means tochange, alter, revise or reverse the basic judgment which ordered the accounting in the first place.

No case or precedent can be cited where the trial court, as did respondent judge in the case at bar as sustained by respondent appellate court, departed from the purpose of the remand to receive and act on the accounting as ordered in the basic judgment so that both could be the subject of a single appeal (and instead altered and revised the judgment itself and the bases for the accounting ordered).

4. In the lead case of Fuentebella, respondent (plaintiff) Carrascoso obtained judgment against Fuentebella (as defendant) "to render an accounting of the 216 mining claims belonging to the mining partnership formed between them for payment to him of his participation therein. The court adjudged plaintiff entitled to share in the assets (if the partnership and directed the defendant to render, within ten days after notice, an accounting of all the expenses incurred in the acquisition and exploitation of the 216 mining claims aforementioned with a view to determining plaintiff's share therein. Maintaining that the partnership did not own the 216 mining claims but only 9 placer claims acquired from Alejandro C. Quito and associates, defendant appealed to the Court of Appealswithout rendering the accounting required in the appealed judgment. Plaintiff thereupon filed a motion in the appellate court praying that the appeal be dismissed on the ground that it was premature, the judgment being merely interlocutory and not final. The Court of Appeals granted the motion and dismissed the appeal." 28 This court dismissed petitioner's (defendant's) the action for mandamus to compel the Court of Appeals to restore his appeal, affirming Carrascoso's contention that the appeal was "premature", holding the judgment that "the judgment rendered by the Court of First Instance of Manila declaring plaintiff entitled to share in the assets of the partnership and directing the defendant to render an accounting of the expenses incurred in the purchase and exploitation of the mining claims, is not final but merely interlocutory and, therefore, not appealable." 29

In the sequel of case of Carrascoso vs. Fuentebella, 30 after the lapse of over ten years from the 1942 judgment ordering Fuentebella surrender the accounting within ten days without such accounting even having been rendered, this Court sustained the lower court's dismissal of Carrascoso's action for revival and execution of the judgment in his favor for a s long as the accounting had not yet been rendered holding that "at the present stage of the litigation, there is an accounting still to be made, and not until this has been effected and the accounting acted upon can there be a final judgment." In denying Carrascoso's plea that the money judgment in his favor should be satisfied, this Court through Justice Tuazon noted that it was through his "vigorous objections that the appeal was declared premature" and he was therefore estoppel, and pointed out that "the only course open to (him) is follow through the order for accounting and liquidation that the case may be placed in a state to be decided definitely, as follows:

It is noticed that the plaintiffs complaint makes reference to only two items of the judgment in question, but the pleadings and the briefs do not disclose whether these items are independent of the others or are subject to the results of the accounting which hag been ordered. However that may be, this Court's decision declaring the judgment interlocutory made no exceptions and by this decision the defendant's appeal was totally overthrown. In the circumstances, it would hardly be fair to hold that part of the judgment which concerns the payment of P4,295.20 and the delivery of shares of stock was separable from the rest and could or should have been dispose of in the appeal without waiting for decision on the other details of the litigation. It should be noted that it was through the plaintiff's vigorous objections that the appeal was declared premature, and dismissed in its entirety. having taken that position, plaintiff is at least estopped from asserting that the judgment or some parts of it became executory by reason of the defendant's failure to prosecute his appeal to its final conclusion. As matters stand, it seems obvious that the only course open to the plaintiff is follow through the order for accounting and liquidation that the case may be placed in a state to be decided definitely.

5. In the case at bar, this Court in remanding the case for the rendition of the accounting "for the completion of said relief' awarded in Judge Mendoza's judgment further ordered the dissolution of the preliminary injunction it had granted against enforcement and execution of his orders declaring his judgment final and executory. This signified that the trial court was left free under Rule 39, section 2 to order execution of his judgment on the merits for recovery of the properties pending appeal. Hence, petitioner after the remand properly filed his motion for execution of the portion of the judgment ordering delivery of the properties, supra, 31 while awaiting the accountingyet to be rendered and acted upon by the trial court. Respondent judge in the exercise of his authority could either grant or deny such motion for execution pending appeal and he opted to deny the same, since he reversed the original decision on three major points but in effect granted the same as to "all other properties not affected by [his] amendments" by ordering their delivery to-petitioner within 45 days 32 (since recovery and delivery of the properties was the principal relief sought by petitioner with the accounting as a mere incident and necessary consequence and without delivery, the accounting of the fruits would be a never ending process and the case would never be ready for appeal!)

But respondent judge exceeded and went beyond his authority and Jurisdiction when he amended his predecessor's judgment on the merits in major particulars and issued an amended decision, and notwithstanding that the case involves properties undisputedly (as far as both judges were concerned) fraudtlently concealed,misappropriated and absconded from the decedent's estate (as a

consequence of which P60,000-exemplarydamages were awarded in Judge Mendoza's original decision and retained in hal the amount by respondent judge in his amended decision), ordered the exclusion of several valuable properties from those ordered delivered to the estate on the basis of his own substituted impression (from his reading of the record) of the credibility of witnesses seen, heard and observed by Judge Mendoza as the trial judge and found by the latter to be totally discredited (having shown in the record "their utter disregard and disrespect not only to truth but also to the meaning and value of the oath required of witnesses" 33 and their being "sadly wanting ... in their sense of truth, probity and sacredness of an oath. To commit a lie is but human, this court realizes, but to lie brazenly and knowingly is humanly unforgivable". 34

Judge Mendoza had heard respondents-witnesses both in the course of the inquiry conducted by him in theintestate proceedings as to the whereabouts of the estate's properties (Sp. Proc. No. 2205-R) 35 and at the trial of the case at bar and from their subsequent contradictory and conflicting changes and reversals of their testimony found them to have given false testimony in pursuance of a scheme to conceal and misappropriate properties of the decedent. Respondent judge also agreed with this finding in the main in his amended decision, sale for the valuable properties excluded by him from Judge Mendoza's original decision on the basis that the decision was "subject to change in the discretion of the court" and "it is only fit and proper 'Chat this court believe in every part of the judgment he is to execute". 36

As to the excluded properties, there is no question that respondent judge in ordering their exclusion in his amended decision did so in all good faith and according to his best lights and from his own meticulous reading of the record as discussed in his extended amended decision.

The basic question therefore is one of authority and jurisdiction, whether its erroneously held by respondent appellate court itself, this Court's description of the original decision as "interlocutory in character" and the appeal taken as premature" clothed respondent judge "with authority to conduct further proceedings, consider additional motions, rule on issues presented by the parties, . and finally to issue any orders, processes and promulgate another decision."

The Court holds that there is no precedent nor justification for the course of action sustained by respondent appellate court, since a judge who succeeds another as presiding judge does not assume reviewing and appellate authority over his predecessor's judgment on the merits including the credibility of the witnesses (which is thesubject of an appeal to the appellate courts but has been remanded merely to complete the relief of accounting so that such accounting may be threshed out together with the principal relief of recovery in a single appeal) — and it may be added that the appellate courts on appeal are called upon to review and pass upon a single decision and not two decisions (the original and the amended). And it should deserve merely passing mention that such successor judge (prescinding from the principle of comity of judges.) should be equally if not more bound by the settled doctrine binding upon this Court itself and the appellate courts that the trial judge's findings of fact and on the credibility of witnesses are entitled to great weight and respect and will be upheld in the absence of a clear and convincing showing of taint, mistake or arbitrariness. 36*

There is yet another more important consideration anchored on public policy. The cause of an impersonal andorderly administration of justice and system of adjudication of court litigation would be greatly if not irreparably set back if parties are subjected to the spectacle of one judge's judgment being radically altered, if not reversed, by his successor after four years without any new trial or evidence simply because the successor reads the record in another light than his predecessor who tried the case and chooses to believe witnesses disbelieved by his predecessor. The Ideal concept that cases are impersonally tried and adjudicated on the basis of certain well defined rules of evidence, law and jurisprudence (regardless of the personality of the judge and his predilections) subject to review only the higher appellate courts which would pass upon and correct the errors, if any, of the trial judge, would thus be dealth a severe blow.

6. Rule 36 on judgments precisely recognizes that judgment at various stages may be rendered when more than one claim for relief is presented in an action, (as the present action for recovery of properties with accounting), and thus provides that:

Section 5. Judgment at various stages — When more than one claim for relief is presented in an action, the court at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may enter a judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separatejudgment is so entered, the court by order may stay its enforcement until the entering of asubsequent judgment or judgments and may prescribe such conditions as are necessary to securethe benefit thereof to the party in whose favor the judgment is entered. (Rule 36, emphasis supplied)

The last part of the above-cited rule is what should have been properly applied by respondent judge in the case at bar: the judgment of July 26, 1965 of Judge Mendoza terminated the action with respect to the claim for recoveryof the properties pertaining to the decedent's estate, and the action was yet to proceed with

respect to the remaining relief of accounting as ordered in the judgment as well as ordered to be done and completed per theremand of the case by this Court in Dy Chun vs. Mendoza. Insofar as Judge Mendoza's judgment granting the claim for recovery of properties was concerned, respondent judge was authorized by the cited Rule to stayenforcement until the rendering of the subsequent judgment on the accounting or prescribe such conditions tosecure the benefit of the judgment in favor of the estate represented by petitioner. But the Rule grants him no , authority to review, revise, amend, alter or reverse Judge Mendoza's original judgment on the merits ordering the delivery of the properties while awaiting completion of the accounting.

7. Rule 39, section 4 which specifically governs actions for accounting expressly provides that "unless otherwise ordered by the court, a judgment or order directing an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal," as follows:

Section 4. Injunction, receivership and accounting, not stayed. — Unless otherwise ordered by the court, a judgment in an action for injunction or in a receivership action, or a judgment or orderdirecting an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. The trial court, however, in its discretion, when an appeal is taken from a judgment granting, dissolving or denying an injunction, may make an order suspending, modifying, restoring, or granting such injunction during the pendency of the appeal, upon such terms as to bond or otherwise as it may consider proper for the security of the rights of the adverse party."(Rule 39)

The pertinent rule accordingly recognizes that in actions involving the rendition of an accounting (as in the case at bar), an appeal may be taken from the judgment ordering the accounting and directs that during the pendency of the appeal or even before the appeal is taken, the rendition of the accounting shall not be stayed, unless otherwise ordered by the trial court. Thus, if the judgment directing an accounting is upheld on appeal, there would be no time lost and the accounting as rendered could be passed upon by the trial court at the stage of execution of judgment; and if the judgment were reversed on appeal, reimbursement of the actual expenses incurred by the successful appellant in rendering the accounting could be awarded.

Here, the rendition of the accounting as a consequence and incident of Judge Mendoza's judgment declaring the properties to belong to the decedent's estate and ordering their delivery to petitioner-administrator was not ordered stayed during the pendency of the appeal taken by respondents. In fact, Judge Mendoza had ruled that the proposed appeal was filed out of time and that his judgment had become final and executory, and the accounting that his judgment had become final and executory, and the accounting that he ordered would have been rendered at the stage of execution of judgment.

That the cited Rule precisely provides for appeals from a judgment "directing an accounting" as in this case and that such judgment is immediately enforced notwithstanding the taking of an appeal or the pendency of an appeal is lucidly explained by the late Chief Justice Moran thus: "(A)s a general rule, the taking of an appeal stays the execution of the judgment. But such is not the case when the judgment is rendered in an action for injunction, or in a receivership action, or when the judgment is one directing an accounting in an action.

"For this, no special reason need even be invoked. While the trial court could also stay immediate execution in its discretion, its refusal to do so must be established by petitioner to amount to grave abuse thereof." 36**

It should be noted that the cited Rule recognizes that the judgment "directing an accounting" is appealable, regardless of whether the accounting is the principal relief sought or a mere incident or consequence of the judgment which grantsrecovery and delivery of absconded properties as the principal relief and expressly provides that "a judgment or order directing an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during thependency of an appeal".

It is manifest from the Rule that if a judgment which directs solely an accounting is appealable notwithstanding that it "does not finally dispose of the action" and the accounting has yet to be rendered "to complete the relief sought", much more so is a judgment which orders the recovery or delivery of properties as principal relief andaccounting as a mere incident appealable, because the judgment which orders the delivery of properties does finally dispose of the action on its merits.

8. If the basic and original judgment for recovery of properties with accounting could thus be altered at will by the trial judge pending the rendition of the accounting on the misconception that the judgment is "interlocutory", rather than on the merits, litigation for the enforcement of one's rights or redress of grievances would be rendered intolerable and interminable.

Take the present case for recovery of properties of the decedent which dates back to his death in 1941. Petitioner-administrator's action for recovery of the properties with accounting was upheld in Judge Mendoza's original judgment of July 26, 1965. Notwithstanding this Court's 1968 judgment in Dy Chun vs. Mendozaremanding the case for rendition of the accounting for completion of the relief, the accounting has not

been rendered almost eleven years later because of respondent judge's amended decision of October 4, 1969 excluding certain valuable properties from the estate and absolving certain respondents from the judgment obligation of delivering them to petitioner.

If we upheld respondent judge's authority to change and alter the basic and original judgment at will for as long as the accounting ordered has not been rendered, then as there is now another judge presiding the trial court since respondent Judge Tantuico's promotion in 1973 to the Court of Appeals, 37 such successor judge of respondent Judge Tantuico must likewise be deemed to have the authority at will to review, revise, change, alter and reverse both the original decision of Judge Mendoza of July 26, 1965 and the amended decision of October 4, 1969 of respondent judge and "promulgate another decision" as per his own criterion of the evidence (and applying respondent judge's same yardstick that it is only "fit and proper" that the presiding judge "believe in every part of the judgment lie is to execute") including or excluding certain properties from those ordered returned to the estate, with the frightening consequence that the accounting would never be rendered, the judgment would never be final for purposes of appeal and the litigation would never end (Witness this case commenced 14 years ago in 1962 for recovery of properties found by both Judge Mendoza and respondent judge to have been fraudulently concealed, misappropriated and absconded from the estate of the decedent who died 35 years ago in 1941!)

As it is now, if the accounting ever got done, there would be two decisions, the original decision of Judge Mendoza and the amended decision of respondent judge, that would be brought up on appeal with the party favored by one decision assailing the other decision. If respondent judge's successors in the lower court were to be permitted also to promulgate still one decision after another as if such decisions on the merits were mere interlocutory orders subject to the judge's control and amendment, there would be as many decisions to be taken up on appeal as there were successor judges inclined to review, revise, and reverse his predecessor's judgment on the evidence and on the law with none of the parties adversely affected able to appeal from any of the fluctuating decisions for as long as the accounting has not been terminated.

9. Imperative and controlling considerations of public policy and of sound practice in the courts to achieve thedesideratum of just, speedy and inexpensive determination of every action militate against such a novel andunprecedented situation where a judgment on the merits for recovery of properties would be left dangling and would be considered as "interlocutory" and subject to revision and alteration at will for as long as the (accountingordered as a mere incident and logical consequence has not been rendered and acted upon by the trial court.

This Court, through Justice Carson over sixty-five (65 years ago in Arnedo vs. Llorente 38 stressed the utter untenability of such a situation and the "disastrous consequences which would follow the recognition of unbridled power in a court" to change, vacate or amend its judgments at will, when it stated that "controlling and irresistible reasons of public policy and of sound practice in the courts demand that at the risk of occasional error, judgments of courts determining controversies submitted to them should become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law, into which, in the opinion of the court, it may have fallen. The very purpose for which the courts are organized is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the respective rights of the parties. With the full knowledge that courts are not infallible, the litigants submit their respective claims for judgment, and they have a right at some time or other to have final judgment on which they can rely as a final disposition of the issue submitted, and to know that there is an end to the litigation. 'If a vacillating, irresolute judge were allowed to thus keep causes ever within his power, to determine and redetermine them term after term, to bandy his judgments about from one party tot he other, and to change his conclusions as freely and as capriciously as a chameleon may change its hues, then litigation might become more intolerable than the wrongs it is intended to redress.' And no words would be sufficient to portray the disastrous consequences which would follow the recognition of unbridled power in a court which has the misfortune to be presided over by a venal and corrupt judge, to vacate and amend, in matters of substance, final judgments already entered."

10. Respondent appellate court's fallacy lies in its failure to appreciate the substantive fact that Judge Mendoza'ssixty-nine-page decision of July 26, 1965 rendered after a full protracted trial (of over three years) wherein he received the full evidence, testimonial and documentary, of the litigants was and is a definite judgment thatdecided finally the rights of the parties upon the issue submitted, by granting the remedy sought by the action ofrecovery with accounting (as a mere incident and logical consequence) of the properties of the decedent's estate.

As restated for the Court by then Associate now Chief Justice Castro in the case of DBP vs. Tañada 39 "a definitive judgment (is) one that 'decides finally the rights of the parties upon the issue submitted, by specifically denying or grantingthe remedy sought by the action."' Thus, the Court held in said case that the earlier (1958) judgment ordering the RFC (as predecessor of the DBP) to accept respondents' backpay certificates in settlement of their mortgage debt specifically granted the remedy sought by respondents and that the non-specification of the amount chargeable against the backpay certificates (at a discounted rate of 2% per annum in relation to its thirty-year maturity period as provided by Republic Act 897, which

was not specified in the judgment) did not make the judgment any less definitive or final. The Court thus adjudged that when respondent del Mar filed his motion for execution of the judgment twelve years later (after he had refused previously to negotiate his backpay certificate at its face value) he was already barred by Rule 39, section 6 from seeking execution "by mere motion or to enforce the (judgment) by an independent action."

Similarly, Judge Mendoza's judgment for recovery with accounting of the properties of the decedent's estate was and is a definitive and final judgment on the merits, although almost eleven years later, the accounting ordered has yet to be rendered.

That petitioner-administrator is entitled to recover the properties absconded from the decedent's estate wasdefinitively settled and adjudged in the judgment. Such right of recovery of the properties and corollarily the obligation of respondent to deliver and return the absconded properties to the estate, cannot in any way be affected or prejudiced by the accounting to be rendered by respondents of the fruits and proceeds thereof during the long, long period of time (for almost two generations since 1941) that they wrongfully held possession thereof. The fruits to be accounted for are mere accessories or products of the properties pertaining to the estate, and the rendition and settlement of account with respect thereto is a mere incident of the judgment which can be ,satisfied even at the execution stage.

This simply means that this definitive judgment is no longer subject to change, revision, amendment or reversal butmust stand to serve as the basis of the accounting ordered. Otherwise, if it were to be subject to change and amendment for as long as the accounting has not been rendered and approved, the basis for the accounting would never be firmly fixed and there would not be no accounting nor completion of the relief nor termination of the litigation since the accounting would not be completed and the appeal would be left hanging and could never be prosecuted for final adjudication by the appellate courts!

11. Respondent judge's fallacy in turn was in his failure to appreciate the vital fact that when this Court in Dy Chun vs. Mendoza remanded in 1968 the case to him, it was for the sole purpose of implementing the standing 1965 judgment of Judge Mendoza to render an accounting of the fruits and proceeds of all the properties ordered delivered and returned to the decedent's estate. Respondent judge was to take the case at the stage it was then, namely, to require the accounting on the basis of the standing judgment which was beyond his power of review or amendment; by no means was he to be deemed authorized to go back and review the case all over again and render another judgment.

This is but in consonance with the constitutional mandate of just and speedy disposition of cases as well as with the Rules of Court which proscribe multiplicity of motions. Here, motions for reconsideration of Judge Mendoza's judgment of July 26, 1965 had been filed by respondents and denied per his order of October 18, 1965 after which respondents sought to appeal the judgment.

Upon remand in 1968 (over four years after Judge Mendoza rendered judgment on the merits for recovery of properties with accounting) of the case for rendition of the accounting for completion of the relief granted in the judgment, as per Dy Chun vs. Mendoza, respondent judge no longer had jurisdiction (since the thirty-dayreglementary period from notice of judgment under Rule 37, section 1 to move for reconsideration or new trial had long expired) to entertain respondents' motions for new trial and reconsideration, much less to set aside the judgment and render an "amended decision". Certainly, a trial judge to whom the case has been remanded to complete the relief awarded by enforcing the accounting — cannot in the guise of holding that the judgment is "interlocutory" because an accounting was ordered and has to be enforced by him — entertain second and supplemental motions for reconsideration of and alter or change the judgment and set it at naught!

Even from the strictly procedural point of view, respondent judge was barred by the omnibus motion rule underRule 15, section 8 (prescinding from his lack of authority to review or alter the standing judgment on the merits which was already in the stage of appeal but merely remanded for implementation of the accounting phase tocomplete the relief granted for purposes of a single appeal) from entertaining respondents' motions for new trial and reconsideration, much less to grant them on the very same grounds already previously rejected by his predecessor.

As the now Chief Justice stressed in Dacanay vs. Alvendia. 40 "(T)he Rules of Court, looking with disfavor on piecemeal argumentation, have provided the omnibus motion rule, whereunder "A motion attacking a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived." 41 The salutary purpose of the rule is to obviate multiplicity of motions as well as discourage dilatory pleadings. As we said in Medran vs. Court of Appeals, 'Litigants should not be allowed to reiterate Identical motions speculating on the possible change of opinion of the court or of judges thereof."

12. It seems evident that respondent judge's error lay in his misequating Judge Mendoza's 1965 judgment on the merits with "interlocutory orders (that) are subject to change in the discretion of the court" 42 and that respondent appellate court fell into the same error when from this Court's holding in Dy Chun vs. Mendoza that Judge Mendoza's 1965 judgment "does not dispose of the action in its entirety and leaves something to be done to complete the relief sought and that accordingly it is not appealable until

after the adjudications necessary for the completion of said relief shall have beenmade" 43 it leapt to the unwarranted conclusion that this Court thereby authorized respondent judge not merely to completethe relief granted by enforcing and resolving the accounting as an incident to the level of interlocutory "process and orders"subject to change, revision and reversal for as long as the accounting has not been rendered and completed. 44

13. The late Chief Justice Moran, who penned the decision in Fuentebella, 45 stated that "(T)he test to ascertain whether or not an order or a judgment is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final. 46

The key test to what is "interlocutory" is when there is something more to be done on the merits of the case. It's more reliable test than that loosely applied in Fuentebella that the decision therein for recovery of properties withaccounting is "interlocutory in character because it does not dispose of the action in its entirely and leavessomething to be done to complete the relief sought." 47 For strictly speaking, the only stage where nothing more can be done in the trial court to complete the relief sought is after the judgment has been executed, and certainly, no one would contend that all judgments are interlocutory before they are actually executed and satisfied.

The examples of interlocutory matters from our jurisprudence that Moran gives in his treatise deal therefore with interlocutory orders, not judgments, such as orders denying motions for dismissal, for annulment of preliminary attachment or injunction, for alimony pendente lite, for default, etc., since they deal with preliminary matters and trial has yet to be held judgment on the merits rendered. 48

In Halili vs. CIR 48*, this Court in ruling that the lower court's judgment (ordering the payment of overtime pay although the total amount was yet undetermined and awaited the computation yet to be rendered by the Court Examiner) had already become final and executory for failure of the losing party to appeal therefrom within the reglementary period, dismissed the contention that the judgment was "interlocutory" and still appealable for as long as the accounting had not been completed by re-defining the terms in this wise: "(T)he word I interlocutory is defined as 'something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the wholecontroversy.' As stated by Bouvier, it is 'something which is done between the commencement and the end of a suit or action which decides some point or matter which, however, is not a final decision of the matter in issue."' and ruled that "(T)he decision, therefore, is a final adjudication on the main issue submitted to the court and cannot be considered asinterlocutory". By the same token, the original 1965 decision was and is a final adjudication on the main issue of ownership and recovery of properties disputed between the parties.

The pertinent provision of Rule 41, section 2 that "only final judgment or orders shall be subject to appeal. No ininterlocutory or incidental judgment or order shall stay the progress of the action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or another," shows that the judgment rendered definitively by Judge Mendoza after trial and on the merits in favor of petitioner and against respondents (forrecovery of the properties with accounting) could not conceivably be classified with interlocutory orders issued by a trial judge on incidental or preliminary matters before or during the course of trial and before judgment on the merits,

14. Here, we have a case of definitive judgment on the merits rendered after trial ordering the recovery of properties as prayed for in petitioner's complaint with payment of exemplary damages and attorney's fees as well as the accounting of the fruits of the properties wrongfully possessed for so long by respondents. The mere incident that accounting since 1941 of the fruits of the properties adjudged to rightfully belong to the decedent's estate has been ordered as a necessary consequence of the judgment on the merits — which is merely toimplement the judgment, by no means makes the judgment an interlocutory one subject to change, alteration and reversion at the discretion and will of the trial judge!

The best example of an analogous judgment to that of the case at bar (for recovery with accounting) is a judgment of the court of industrial relations finding a respondent guilty of unfair labor practice and ordering hisreinstatement with backwages. Such a judgment has always been considered final for purposes of appeal, with nothing more to be done on the merits. The mere circumstance that the judgment for backwages orders the accounting division of the industrial court to compute and determine the amount of backwages to be paid to petitioner after an examination of the employer's payrolls and after hearings to determine the reinstated worker's earnings elsewhere during the period of his dismissal for purposes of deducting the same from the backwages to be paid him are deemd to be matters of implementation and execution which in no way render the judgmentinterlocutory or subject to change or reversal at the judge's discretion — although in many instances such backwages accounting and computation proceedings take much longer (from 1 to 10 years) to finish than the trial and affirmance on appeal of the main action for reinstatement of the worker. (Which is really another compelling reason to allow immediate appeal, for otherwise years will have dragged on during the accounting without theprincipal question of the worker's right to reinstatement with backwages having been finally resolved on appeal).

15. There have been cases of interlocutory orders, such as one for payment of alimony pendente lite, which have nevertheless been the subject of appeal, where this Court has refused to stay the progress of the appeal or dismiss it where the objection to the appeal has come too late and is deemed waived. The Court so held in Salazar vs. Salazar, 49 in affirming on the merits the appealed order for alimony pendente lite and rejecting the belated motion to dismiss the appeal on the ground of its involving an interlocutory order, that "(T)he motion to dismiss filed by appellee during the pendency of this appeal on the ground that the order appealed from is not appealable because it is merely interlocutory, cannot be entertained. While an order denying or granting alimony pendente lite is interlocutory and consequently non-appealable (Moran's Comments on the Rules of Court, Vol. II, 1952 ed., p. 120), however, if appeal is taken therefrom, and no timely objection is interposed thereto, the objection is deemed waived. Thus, when objection is founded on the ground that the judgment appealed from is interlocutory, but the appellee, before making such objection, has allowed the record on appeal to be approved and printed, and has allowed the appellant to print his brief, such objection is too late and is deemedwaived (Slade-Perkins vs. Perkins, 57 Phil. 223, 225; Luenco Martinez vs. Perkins, 17 Phil. 29, Moran's Comments on the Rules of Court, Vol. 1, 1952 ed., p. 987). This is the situation that obtains herein. The motion to dismiss should therefore be denied." 50

Here, respondents themselves filed an appeal from Judge Mendoza's judgment of July 26, 1965 and the only issue in Dy Chun vs. Mendoza, supra, was as to the timeliness of the appeal. No one interposed any objection that the appeal was improper as the judgment was interlocutory, as indeed both respondents and petitioner were agreed that the judgment for recovery with accounting finally resolved the issues between them on the merits and nothing more was left to be done on the merits except to implement the judgment with the delivery of the properties and theaccounting of the proceeds thereof.

Respondents obtained a reprieve when this Court in Dy Chun vs. Mendoza remanded the case to implement theaccounting to complete the relief awarded for purposes of a single appeal from the judgment's award of recoveryof properties 16th accounting and they expressly acceded thereto. This reprieve does not mean that they can now take the contrary and inconsistent stand that the judgment should be considered interlocutory and subject to alteration, revision or reversal. The Court's manifest intent in making the remand was to complete the relief with the accounting so that respondents' appeal may then take its course.

If in Salazar a belated objection to an appeal from an interlocutory order (of alimony pendente lite) was deemed a waiver, so much more should respondents be deemed to have waived any belated contrary or inconsistent stand that the very judgment they were appealing was "interlocutory," much less that it was subject to alteration, change or reversal pending the accounting of fruits therein awarded.

Following the ruling in Salazar eleven years later in 1953 (rather than the earlier 1942 ruling of Fuentebella) the Court should have resolved in Dy Chun vs. Mendoza in 1968 respondents' appeal on the merits of Judge Mendoza's 1965 judgment (if it considered respondents' appeal timely) or upheld Judge Mendoza's order ruling that respondents' appeal was filed out of time — since neither petitioner nor respondents had ever presented any objection or afterthought that the judgment sought to be appealed from was "interlocutory" and that the challenged appeal was therefore "premature". Had this Court so resolved in 1968 the appeal on the merits of the question of timeliness of the appeal, then the parties would not still be here eight years later in 1976 still groping for an end to their litigation dating back to decedent's death in 1941!

The validity of this position may be further shown in this wise: If besides the recovery and exemplary damages, Petitioner had sought and been awarded in the judgment a lump sum as actual and compensatory damages (through proof of the value of the properties and their potential earnings) instead of an accounting of the fruits, interest, profits, etc., of the misappropriated and absconded properties, it would be beyond question that such a judgment was final and appealable. That petitioner had sought and been awarded an accounting instead (as another means to determine the actual and compensatory damages suffered by the estate) makes the judgment no less final and appealable. The reason simply is that the principal relief is the recovery of the properties and the damages or accounting is but an incident and consequence. Hence, the judgment for delivery of the properties is final and appealable. If it is affirmed on appeal, then damages or accounting must go with it; otherwise if it isreversed on appeal, then there is no damage or accounting.

But one thing should certainly be clear. Respondents having been granted a reprieve by this Court's 1968 decision in Dy Chun vs. Mendoza when they readily embraced and expressly accepted and acceded to the viewmotu proprio raised by this Court that the accounting ordered in the judgment be first enforced and implementedbefore giving due course to their appeal, so that a single appeal would cover both the recovery and accounting(which thereby aborted the cardinal question of timeliness of their appeal, which Judge Mendoza had already ruled was filed out of time) are estopped and could not now claim after the remand that the adverse judgment against them sentencing them to return the fraudulently absconded properties to the decedent's estate was after all a mere "interlocutory" or fleeting judgment without permanence or finality and subject to change, alteration or reversal at the will and discretion of Judge Mendoza as the trial judge and of respondent judge and of as many other judges as may succeed him in presiding over the lower court for as long as the accounting has not been rendered and acted upon

II

The Court's reversal of respondent Court of Appeals' decision which upheld respondent judge's amended decision changing and amending substantially his predecessor's judgment on the merits for recovery of properties with accounting on the main ground, inter alia, that this Court's 1968 judgment in Dy Chun vs. Mendoza was misread and misapplied, since the only remaining or residual authority of respondent judge was to enforce, consider and act on the accounting ordered in the original decision for the completion of the relief therein granted before considering private respondents' proposed appeal, suffices to dispose of the case at bar itself.

The Court, however, deems it proper for the guidance of the bench and bar to now declare as is clearly indicated from the compelling reasons and considerations hereinabove stated:

— that the Court considers the better rule to be that stated in H.E. Heacock Co. vs. American Trading Co. 51, to wit, that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property, "the judgment ... rendered by the lower court [is] a judgment on the merits as to those questions, and (that) the order of the court for an accounting was based upon, and is incidental to the judgment on the merits. That is to say, that the judgment ... (is) a final judgment ...; that in this kind of a case an accounting is a mere incident to the judgment; that an appeal lies from the rendition of the judgment as rendered ..." (as is widely held by a great number of judges and members of the bar, as shown by the cases so decided and filed and still pending with the Court) for the fundamental reasons therein stated that "this is more in harmony with the administration of justice and the spirit and intent of the [Rules]. If on appeal the judgment of the lower court is affirmed, it would not in the least work an injustice to any of the legal rights of [appellee]. On the other hand, if for any reason this court should reverse the judgment of the lower court, the accounting would be a waste of time and money, and might work a material injury to the [appellant]; 51* and

— that accordingly, the contrary ruling in Fuentebella vs. Carrascoso 52 which expressly reversed the Heacock case and a line of similar decisions 53 and ruled that such a decision for recovery of property with accounting "is not final but merely interlocutory and therefore not appealable" and subsequent cases adhering to the same 54 must be now in turnabandoned and set aside.

Fuentebella adopted instead the opposite line of conflicting decisions mostly in partition proceedings and exemplified by Ron vs. Mojica, 8 Phil. 928 (under the old Code of Civil Procedure) that an order for partition of real property is not final and appealable until after the actual partition of the property as reported by the court-appointed commissioners and approved by the court in its judgment accepting the report. It must be especially noted that such rule governing partitions is now so expressly provided and spelled out in Rule 69 of the Rules of Court, with special reference to sections 1, 2, 3, 6, 7 and 11, to wit, that there must first be a preliminary order for partition of the real estate (section 2) and where the parties co-owners cannot agree, the court-appointed commissioners make a plan of actual partition which must first be passed upon and accepted by the trial court and embodied in a judgment to be rendered by it (sections 6 and 11). In partition cases, it must be further borne in mind that Rule 69, section 1 refers to "a person having the right to compel the partition of real estate", so that the general rule of partition that an appeal will not lie until the partition or distribution proceedings are terminated willnot apply where appellant claims exclusive ownership of the whole property and denies the adverse party's right to any partition, as was the ruling in Villanueva vs. Capistrano and Africa vs. Africa, supra, 55 Fuentebella's express reversal of these cases must likewise be deemed now also abandoned in view of the Court's expressed preference for the rationale of the Heacock case.

The Court's considered opinion is that imperative considerations of public policy and of sound practice in the courts and adherence to the constitutional mandate of simplified, just, speedy and inexpensive determination of every action call for considering such judgments for recovery of property with accounting as final judgments which are duly appealable (and would therefore become final and executory if not appealed within the reglementary period) with the accounting as a mere incident of the judgment to be rendered during the course of the appeal as provided in Rule 39, section 4 or to be implemented at the execution stage upon final affirmance on appeal of the judgment (as in Court of Industrial Relations unfair labor practice cases ordering reinstatement of the worker with accounting, computation and payment of his backwages less earnings elsewhere during his lay-off) and that the only reason given in Fuentebella for the contrary ruling, viz, "the general harm that would follow from throwing the door open to multiplicity of appeals in a single case" is of lesser import and consequence.

Furthermore, the premise that the accounting portion of the judgment would give rise to a second appeal in the same case is erroneous because taken as a mere incident to the judgment as provided in the cited Rule or as a matter to be implemented in the execution stage, no appeal would lie from the lower court's action approving or disapproving the accounting unless there were gross error, oppression, fraud or grave abuse of discretion amounting to lack of jurisdiction that would be correctible on a special writ of certiorari. It must also be noted that the resort to multiple appeals in a single case has been considerably lessened since the enactment on September 9, 1968 of Republic Act 5440 which did away with the right of appeal to this Court save in the three

special cases therein provided 56 and provides only for review on certiorari in this Court of all other final judgments and decrees of inferior courts at its judgment and discretion.

ACCORDINGLY, respondent appellate court's decision is set aside and instead judgment is rendered declaring null and void and setting aside respondent judge's amended decision of October 4, 1969 and reinstating the original decision of July 26, 1965. The judge now presiding the Court of First Instance of Cebu in Civil Case No. R-7793 thereof (and whoever may hereafter succeed him) is ordered to proceed forthwith with the implementation of this Court's 1968 judgment in Dy Chun vs. Mendoza by making the necessary adjudication within thirty (30) days from finality of this judgment on the full, accurate and correct accounting of all fruits, interest, profits, assets and properties required of the defendants therein 'which accounting private respondents (defendants) are hereby ordered to render within thirty (30) days from notice hereof. Good grounds having been set forth and found to order delivery pending appeal of the properties found in the July 26, 1965 judgment to belong to the decedent's estate, private respondents (defendants) are hereby ordered to deliver all such properties to petitioner-administrator within thirty (30) days from finality of this judgment, regardless of any appeal they may take from the said July 26, 1965 judgment and adjudication that the lower court may make on their accounting (as allowed in Dy Chun vs. Mendoza), subject to the provisions of Rule 39, section 3 on stay of execution upon approval of a sufficient supersedeas bond. In view of the reversal herein of the doctrine of Fuentebella vs. Carrascoso and the length of time that this dispute between the parties has been pending final determination, private respondents are herein given the option within thirty (30) days from finality of this judgment to take an immediate appeal from the said July 26, 1965 judgment without waiting for the trial court's adjudication on the accounting therein ordered.

With costs against private respondents jointly and severally.

SO ORDERED.

EN BANC

G.R. No. L-9271             March 29, 1957

In the matter of the testate estate of the late DA. MARGARITA DAVID. CARLOS MORAN SISON, Judicial Administrator, petitioner-appellant, 

-versus-NARCISA F. TEODORO, heiress, oppositor-appellee.

Teodoro R. Dominguez for appellant.Manuel O. Chan for appellee.

BAUTISTA ANGELO, J.:

On December 20, 1948, the Court of First Instance of Manila, which has jurisdiction over the estate of the late Margarita David, issued an order appointing Carlos Moran Sison as judicial administrator, without compensation, after filing a bond

in the amount of P5,000. The next day, Carlos Moran Sison took his oath of office and put up the requisite bond which was duly approved by the court. On the same day, letters of administration were issued to him.

On January 19, 1955, the judicial administrator filed an accounting of his administration which contains, among others, the following disbursement items:

13. Paid to Visayan Surety & Insurance Corporation on August 6, 1954, as renewal premiums on the Administrator's bond of Judicial Administrator Carlos Moran Sison covering the period from December 20, 1949 to December 20, 1954, inclusive ................................. P380.70

15. Paid to Visayan Surety & Insurance Corporation on December 21, 1954, for premiums due on the Administrator's bond of judicial Administrator Carlos Moran Sison for the period from December 21, 1954 to December 21, 1955 ............................................................... 76.14

Narcisa F. Teodoro, one of the heirs, objected to the approval of the above- quoted items on the grounds that they are not necessary expenses of administration and should not be charged against the estate. On February 25, 1955, the court

approved the report of the administrator but disallowed the items objected to on the ground that they cannot be considered

as expenses of administration. The administrator filed a motion for reconsideration and when the same was denied, he took the present appeal.

The only issue to be determined is "whether a judicial administrator, serving without compensation, is entitled to charge as an expense of administration the premiums paid on his bond."

The lower court did not consider the premiums paid on the bond filed by the administrator as an expense of administration taking into account undoubtedly the ruling laid down in the case of Sulit vs. Santos, 56 Phil., 626. That is a case which also involves the payment of certain premium on the bond put up by the judicial administrator and when he asked the

court that the same be considered as an expense of administration, it was disapproved for the same reasons advanced by the trial court. In sustaining this finding, this Court ruled that the "expense incurred by an executor or administrator to

produce a bond is not a proper charge against the estate. Section 680 of the Code of Civil Procedure (similar to section 7, Rule 86) does not authorize the executor or administrator to charge against the estate the money spent for the presentation,

filing, and substitution of a bond." And elaborating on this matter, the Court made the following comment:

The aforementioned cases, in reality, seem superfluous in ascertaining the true principle. The position of an executor or administrator is one of trust. In fact, the Philippine Code of Civil Procedure so mentions it. It is proper for the law to safeguard the estate of deceased persons by requiring the executor or administrator to give a suitable bond. The ability to give this bond is in the nature of a qualification for the office. The execution and approval of the bond constitute a condition precedent to acceptance of the responsibilities of the trust. If an individual does not desire to assume the position of executor of administrator, he may refuse to do so. On the other hand, when

the individual prefers an adequate bond and has it approved by the probate court, he thereby admits the adequacy of the compensation which is permitted him pursuant to law. It would be a very far-fetched construction to deduce

the giving of a bond in order to qualify for the office of executor or administrator is a necessary expense in the care, management, and settlement of the estate within the meaning of section 680 of the Code of Civil Procedure,

for these are expenses incurred after the executor of administrator has met the requirements of the law and has entered upon the performance of his duties. (See In re Eby's Estate [1894], 30 Atl., 124.)

We feel that the orders of Judge Mapa in this case rested on a fine sense of official duty, sometimes lacking in cases of this character, to protect the residue of the estate of a deceased person from unjustifiable inroads by an executor, and that as these orders conform to the facts and the law, they are entitled to be fortified by an explicit pronouncement from this court. We rule that the expense incurred by an execution or administrator to procure a

bond is not a proper charge against the estate, and that section 680 of the Code of Civil Procedure does not authorize the executor or administrator to charge against the estate the money spent for the presentation, filing,

and substitution of a bond.

It is true that the Sulit case may be differentiated from the present in the sense that, in the former the administrator accepted the trust with the emolument that the law allows, whereas in the latter the administrator accepted the same without compensation, but this difference is of no moment, for there is nothing in the decision that may justify the

conclusion that the allowance or disallowance of premiums paid on the bond of the administrator is made dependent on the receipt of compensation. On the contrary, a different conclusion may be inferred considering the ratio decidendi on which the ruling is predicated. Thus, it was there stated that the position of an executor or administrator is one of trust: that it is proper for the law to safeguard the estates of deceased persons by requiring the administrator to give a suitable

bond, and that the ability to give this bond is in the nature of a qualification for the office. It is also intimated therein that "If an individual does not desire to assume the position of executor or administrator, he may refuse to do so," and it is far-

fetched to conclude that the giving of a bond by an administrator is an necessary expense in the care, management and settlement of the estate within the meaning of the law, because these expenses are incurred "after the executor or

administrator has met the requirement of the law and has entered upon the performance of his duties." Of course, a person may accept the position of executor or administrator with all the incident appertaining thereto having in mind the

compensation which the law allows for the purpose, but he may waive this compensation in the same manner as he may refuse to serve without it. Appellant having waived compensation, he cannot now be heard to complain of the expenses

incident to his qualification.

The orders appealed from are hereby affirmed, without costs.

Paras. C.J., Bengzon, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-31860             October 16, 1930

In the matter of the Estate of Charles C. Rear, deceased. J.J. WILSON, administrator-appellee, vs.M. T. REAR, ET AL., heirs-appellants.

J. A. Wolfson and Lionel D. Hargis for appellants. Juan S. Alano and Pastor Kimpo for appellee.

STATEMENT

July 14, 1925, Charles C. Rear was murdered by some Moros on his plantation situate in the interior of the Province of Cotabato at an isolated place, without communication except by river, about 17 kilometers from the nearest settlement of Pikit, and about 70 kilometers from the town of Cotabato. The whole plantation consisted of public lands. J.J. Wilson qualified as special administrator of the estate on November 17,1925. Later, the property of the estate was appraised at P20,800, of which the commissioners filed an inventory and report, which was also signed by Wilson. January 4,1927, the commisioners made and filed a report of claims against the estate, but by reasons of the fact that it was claimed and alleged that the administrator did not have any funds to pay, on March 30, 1927, the court ordered the administrator to sell a portion of the property. April 26, 1927, and with the consent of the heirs, a petition was made for authority to sell, under sealed proposal, all the property of the estate, with a view of closing the administration. October 10,1927, the court granted this petition, and after due notice, the public sale took place, and the property was sold to Wm. Mannion for P7,600. April 26,1927, Wilson submitted a report covering his administration to that date, which was approved and later set aside on motion of the heirs of the deceased. March 23, 1928, Wilson filed his final account which later was amended on June 20,1928, to which the heirs made numerous and specific objections, and after a hearing, the court approved the account as filed. From which the heirs of the deceased appealed and assign the following errors:

I. The lower court erred in approving the final amended account of the administrator for the following reasons:

(a) That the alleged disbursements made by the special administrator and the administrator were far in excess of the amount required to preserve the estate;

(b) That no authority being asked for or granted by the court, all loans or advances, made to the estate, were made contrary to law and are not legal charges against the estate (Trs., p. 37).

(c) The court erred in admitting, over objection, Exhibits D, E and F.

(d) That Wilson, as special administrator and as administrator, was neglectful and imprudent and he committed waste. He is, therefore, liable.

II. The lower court erred in refusing to allow the cross-examination and direct examination of witnesses.

III. The lower court erred in denying the request for a reasonable continuance in order to obtain depositions.

 

 

 

Separate Opinions

 

JOHNS, J.:

It appears from the first inventory of December 27, 1925, that the assets of the estate, including real property, coconut trees, and houses were P15,300, and that the personal property was valued at P5,250, which included 80 head of cattle, carabao and horses of the value of P4,000. Although he was appointed special administrator on November 17, 1925, he never made any report or filed any account of any kind until 1927. Neither did he apply to or obtain an order from the court of any nature during that period, and it appears that the attention of the court was for the first time called to the administration of the estate when the commissioners on claims asked to have their fees paid; otherwise, the court never made any order of any kind from December 27, 1925, to April, 1927. It also appears that at the time of his death, the only debts against the deceased were one in favor of Sewal Fleming which then amounted to P800, and one in favor of J. S. Alano for P500. It appears from

the amended final report that in the course of administration, the administrator received the following amounts from the specified sources:

1925

Nov. 30, Hogs sold (see plant. book) P108.50

Sales store (see plant. book) 38.02

Dec. 31,Sundry products sold (see plant. book)

217.50

Old debt collected 6.00

1926

Jan. 31, Sundry farm products 76.15

Sales store 104.58

Feb. 28, Sundry products 130.00

Sales store 87.95

March 31,

Sundry products 3.00

Sales store 53.12

April 30, Products 117.00

Store .25

May None (Store discontinued)

June 30, Products 2.20

July Do 29.75

Aug. Do 12.80

Sept. Do 18.40

Oct. None.

Nov. Do.

Dec. Do.

1927

Jan. Products 16.00

Feb. Do 166.60

Mar. Products 15.00

Cash received from Constabulary

20.91

Apr. Products 13.50

May Do 5.00

June Do 10.00

July Carabao sold 100.00

Two steers sold 160.00

Aug. Hogs sold 79.50

Few nuts sold 8.00

Sept. Two steers sold 180.00

Nuts sold 12.00

Oct.$50 U. S. Liberty Bond & Interest

127.52

The total of which is

1,919.25

 

From which it appears that on November 30,1925, the administrator sold hogs for P108.50; in July, 1927, he sold one carabao for P100 and two steers for P160; in August he sold hogs for P79.50; and in September he sold two steers for P180.

Strange as it may seem, the above is the only account which was ever rendered of the livestock which was appraised at P4,000, and yet no specific objection was ever made or filed to the final account of the administrator for his failure to render any other or different account of the livestock. Even so, it appears that the sale to Mannion was made by and with the consent of the heirs, and that the deed was intended to convey all of the property to him described in the inventory, except that of a perishable nature and some personal effects. It further appears from the amended account that the total amount of cash received by the administrator, including the sale to Mannion was P9,519.25, and that the total amount of cash disbursed by the administrator was P11,328.94, leaving a deficit or balance due and owing from the estate of P1,809.69. It also appears that the amount of Fleming's note at the time it was paid was P1,003.40, and that the taxes for the years 1925,1926, and 1927 amounted to P152.14, and the claim of J. S. Alano amounted to P500. That is to say, at the time they were paid, the actual claims against the deceased was P 1,655.54. Here, it will be noted that the value of the personal property of the estate at the time of Wilson's appointment, appearing over his own signature was P5,800 which included 80 head of cattle, carabao and horses of the value of P4,000. That is to say, at the time Wilson was appointed, his estate had personal property of the value of P5,800, and when the amended final account was filed the actual debts of the deceased, including interest and accumulated taxes, was P1,655.54.

In this situation, it was the legal duty of the administrator to at once apply to the court for an order to sell the personal property to pay the debts of the deceased and the expenses of administration. It also appears from the amended final account that the expenses charged by the administrator was P750.94; that the court expenses, including attorney's fees was P693.20; and that the claims of the commisioners was P322.90, the total of which is P1,767.04. That is to say, that the total of all claims against the deceased, including interest and taxes was P1,655.54, and that the whole amount of the court costs and expenses of administration was P1,767.04, the total of which is P3,422.58. That is to say, at the time of his appointment, it appears over the administrator's own signature that the value of the personal property of the deceased which came into his possession was P5,800, and the whole amount of claims against Rear at the time of his death and the court costs and expenses of administration was P3,422.58. That is to say, if the personal property of the estate had been promptly sold, when it should have been, and sold for its appraised value, all the debts of the deceased and the court costs and expenses of administration would have been paid, and the estate would have a balance left of P2,377.42. Instead of doing that, and without any order, process or authority of the court the administrator, as appears from his amended final account, continued the operation of the plantation and the employment of Fleming as manager at a salary of P200 per month, and a large number of men, so that at the time of the filing of the amended final account, the total expense for labor was P2,863.62, and the amount of the manager's salary was P4,533.33, the net result of which was that all of the property of the estate was consumed, lost, or destroyed, leaving a deficit against the estate of P1,809.69. Whereas, if the administrator had followed the law and promptly sold the personal property, all of the debts of the estate would have been paid, and it would have a cash balance in its favor of P2,377.42, and all of its real property left, which was appraised at P15,000.

It is but fair to say that Wilson's place of business, which was in Zamboanga, is at least 300 kilometers from the plantation, and that he declined to serve as administrator and only accepted it under pressure. That in legal effect he operated and left the management of the plantation largely in the discretion of Fleming, and that he personally had but little, if anything, to do with the administration, and it does not appear that he was a party to any fraud. But even so, he was appointed and qualified as administrator, and the law imposed upon him legal duties and obligations, among which was to handle the estate in a business-like manner, marshal its assets, and close the estate without any unreasonable or unnecessary delay. He was not appointed to act for or on behalf of the creditors, or to represent the interests of the heirs only. He should have administered the affairs of the estate for the use and benefit alike of all interested persons, as any prudent business man would handle his own personal business. When appointed, it is the legal duty of the administrator to administer, settle, and close the administration in the ordinary course of business, without any unnecessary delay. Neither does an administrator, in particular, without a specific showing or an order of the court, have any legal right to continue the operation of the business in which the deceased was engaged, or to eat up and absorb the assets of the estate in the payment of operating expenses. Yet, in the instant case, the administrator on his own volition and without any authority or process of court continued the operation of the plantation, and in the end, as shown by his own report, the estate, which was appraised at P20,800, with actual debts of the deceased of only P1,655,54 was all wiped out and lost, and left with a deficit of P1,809.69. 1awph!l.net

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:

C. Engaging in Business — 1. GENERAL RULE. The general rule is that neither an executor nor an administrator is justified in placing or leaving assets in trade, for this is a hazardous use to permit of trust moneys; and trading lies outside the scope of administrative functions. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred without on the other hand allowing him to receive the benefit of any profits that he may make, the rule being that the persons beneficially interested in the estate may either hold the representative liable for the amount so used with interest, or at their election take all the profits which the representative has made by such unauthorized use of the funds of the estate.

Even so, considering the fact that Wilson's home and place of business was 300 kilometers from the plantation, and that in the very nature of things, he could not give the business of the estate his personal attention, we are disposed to be more or less lenient, and to allow him the actual operating expenses of the plantation for the first eight months of his appointment amounting to P2,257.45. Although the expense account of the administrator and the claims of the commissioners are somewhat high, we are also disposed to allow those claims. That is to say, in his final account, the administrator should have credit for the following items:

His personal charges and expensesP

750.94

Court expenses, including attorney's fee 693.20

Claims of the commissioners 322.90

Expenses for and on account of operation for the first eight months 2,257.45

Debts against the deceased, including taxes

1,655.54

or a total of 5,680.03

As stated, it appears from his report that the administrator in the course of administration received P1,919.25 from the sale of personal property. This with the P7,600 which he received from the remaining assets sold to Mannion make a total of P9,519.25 from which should be deducted P5,680.03 for and on account of the items above stated, leaving a balance due and owing from the administrator to the heirs of the deceased of P3,839.22.

As stated, it is the duty of the administrator of an estate to represent and protect the interests of all interested persons, including the heirs of the deceased. It is very apparent upon their face that the entries in Exhibits D and E were not made in the ordinary course of business, and even if they were, they would not be evidence of the payments without the corresponding receipts or vouchers. That is to say, to entitle the administrator to credit for money paid out in the course of administration, he should submit and file with the court a corresponding receipt or voucher. Even so, it appears from the record that during his lifetime, the deceased employed a number of laborers on the plantation, and that after Wilson was appointed as administrator,

Fleming personally took charge of and operated the plantation, and that the expenses of which for the first eight months was P2,257.45.

The order of the lower court approving the final account of Wilson as administrator is reversed and set aside, and a judgment will be entered in favor of the heirs and against the administrator for P3,839.22, with interest thereon from November 7,1927, at the rate of 6 per cent per annum, without prejudice to any remedy which the heirs may have against the bondsmen of the administrator. The appellants to recover costs. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur. Ostrand, J., reserves his vote.