[G.R. No. 23718. August 28, 1925.

In the matter of the estate of Henry W. Elser, deceased. VICENTE E. REYES,

claimant-appellee, v. C.W. ROSENSTOCK, executor-appellant.

Boomer &Alvear for Appellant.

Santiago & Guerrero for Appellee.

SYLLABUS

1. WHEN DEFICIENCY JUDGMENT MAY BE PROVED AGAINST ESTATE. — Where

during his lifetime E executed a mortgage on real property to R upon which R
brought a suit to foreclose and obtained a decree against E for the amount of the
debt and the foreclosure of the mortgage, after which E died, and an executor of his
estate was appointed, and the property was then sold to satisfy the decree, leaving a
deficiency judgment, under the provisions of the second clause of section 708 of the
Code of Civil Procedure, R may then prove his deficiency judgment before the
committee on claims against the estate of E.

DECISION

STATEMENT

On or about April 30, 1923, the plaintiff obtained a judgment against Henry W.
Elser, who was then living, for the sum of P64,242.69, and for the foreclosure
of a certain real mortgage property in Manila and the sale thereof to satisfy
the judgment. Pending proceedings to appeal to this court from the judgment,
Elser died June 18, 1923, and in the ordinary course of business C. W.
Rosenstock was appointed as executor of his estate, and later the appeal was
perfected by him as executor, and the judgment of the lower court of its origin
for further proceedings, 1 Execution was issued, and on May 17, 1924, the
mortgaged property was sold by the sheriff of Manila at public auction for
P13,000. On June 2, 1924, the sale was duly confirmed and no appeal was
taken from the order of confirmation. The plaintiff duly applied for and on
July 25, 1924, obtained a deficiency judgment against the Elser estate for the
sum of P68,700.88, with interest at 12 per cent per annum on P64,242.69 of
said sum from July 8, 1924. After obtaining the deficiency judgment, the
plaintiff at once applied to the Court of First Instance for the appointment of a
committee on claims to examine and approve his claim against the Elser
estate, of which the defendant was duly notified, and to which he duly
objected.

After a hearing the court appointed Jose de Guzman and P. D. Carman as

commissioners.
 August 29, 1924, the plaintiff, based upon his deficiency judgment, filed with
the commissioners his proof of claim, to which the defendant objected.
September 19, 1924, the plaintiff’s claim was allowed in full by the
commissioners, as a claim against the Elser estate, to which the defendant
excepted. December 8, 1924, the defendant filed a motion for a
reconsideration, which was denied, and from an order approving the
allowance of the committee on claims, the defendant prosecutes this appeal,
assigning the following errors:jgc:chanrobles.com.ph

"I. The Court of First Instance erred and exceeded its jurisdiction in entering
the order of August 21, 1924, reappointing the committee on claims and
appraisals in the above-entitled proceeding, for the purpose of hearing and
deciding the claim of Vicente E. Reyes against the estate.

"II. The Court of First Instance erred in entering the order of November 18,
1924, declaring the appeal of the executor from the decision of the committee
allowing the claim of Vicente E. Reyes to have been presented out of time, and
ordering the executor to pay the said claim of Vicente E. Reyes out of the funds
of the estate."cralaw virtua1aw library

JOHNS, J. :

There is no dispute about any material fact. The question presented is a legal one
which involves the construction of section 708 of the Code of Civil Procedure, which
is as follows:jgc:chanrobles.com.ph

"Mortgage debt due from estate. — A creditor holding a claim against the deceased,
secured by mortgage or other collateral security, may abandon the security and
prosecute his claim before the committee, and share in the general distribution of
the assets of the estate; or he may foreclose his mortgage or realize upon his
security, by ordinary action in court, making the executor or administrator a party
defendant; and if there is a judgment for a deficiency, after the sale of the mortgaged
premises, or the property pledged, in the foreclosure or other proceeding to realize
upon the security, he may prove his deficiency judgment before the committee
against the estate of the deceased; or he may rely upon his mortgage or other
security alone, and foreclose the same at any time, within the period of the statute of
limitations, and in that event he shall not be admitted as a creditor, and shall receive
no share in the distribution of the other assets of the estate; but nothing herein
contained shall prohibit the executor or administrator from redeeming the property
mortgaged or pledged, by paying the debt for which it is held as security, under the
direction of the court, if the court shall adjudge it to be for the best interest of the
estate that such redemption shall be made."cralaw virtua1aw library

It is important to note that the original judgment against Elser was rendered on
April 30, 1923, and that he was living at the time it was rendered, and that he died
on June 18, 1923, pending his appeal to this court, or forty-nine days after the
rendition of the judgment.

This section provides for three separate distinct proceedings. First, a creditor
holding a claim against the deceased, secured by mortgage or other collateral
security, may abandon his security and prosecute his claim before the committee
and share in the general distribution of the assets of the estate; or, second, he may
foreclose his mortgage or realize upon his security, by an ordinary action in court,
making the executor or administrator a party defendant; and if there is a deficiency
judgment, after the sale of the mortgaged property, he may prove his deficiency
judgment before the committee on claims against the estate of the deceased, or,
third, he may rely exclusively upon his mortgage and foreclose it at any time, within
the period of the statute of limitations, and if he relies exclusively upon the
mortgage, he shall not be admitted as a creditor of the estate, and shall not share in
the distribution of the assets of the estate.

In the instant case, the plaintiff proceeded under and fully complied with all of the
requirements of the second provision. He obtained his judgment and decree of
foreclosure during the lifetime of the deceased.

On his own motion and as executor of the estate, Rosenstock was substituted as a
defendant and prosecuted the appeal. After the judgment was affirmed, the plaintiff
promptly issued an execution and sold the property. After applying the proceeds of
the sale to the satisfaction of the judgment, the plaintiff promptly applied for and
obtained a deficiency judgment. When the deficiency judgment was obtained, the
plaintiff petitioned the court to appoint a committee on claims. His petition was
granted and the committee was appointed. The plaintiff then appeared before the
committee and presented his claim based upon the allowance of his claim was
confirmed by the court. The defendant had notice of all of such proceedings, to all of
which he objected and duly expected. Hence, plaintiff’s claim comes squarely under
the second provision of section 708 of the Code of Civil Procedure above quoted.

Defendant contends that the claim in question is a contingent claim, and that as such
it should have been presented to the original committee on claims of the estate, and
that because it was not presented it is barred.

In his brief appellant says:jgc:chanrobles.com.ph

"At all times prior to May 17, 1924, his deficiency judgment, his present claim, was a
mere contingent claim. The holder of a contingent claim is not a creditor and it is not
known until the happening of the contingency, that he will ever become one; the
Code nowhere calls him a ’creditor;’ he is merely ’a person’ who has a contingent
claim (see section 746, Code of Civil Procedure). It is true that claimant-appellee
during all of ’the time previously limited’ was a mortgage creditor of the estate, but
as such creditor, he elected not to surrender and prove his claim as he might have
done under section 708, or to present the possibility of his requiring a deficiency
judgment, to the committee in the form of a contingent claim. But claimant-appellee,
on August 2, 1924, when he applied to the court to have the committee
recommissioned did not apply as a creditor with a mortgage credit which he had
failed to present, but he applied as the holder of a claim which had been contingent
during all of ’the time previously limited’ and had not been presented as required by
section 746 of the Code of Civil Procedure, and which had then become absolute,
after the expiration of ’the time previously limited.’ There s no remedy in section
690 for a holder of a contingent claim who has not presented it before ’the time
previously limited’ has expired. Section 690, as we have seen, is a remedy for a
’creditor’ of an estate, who was a creditor before the expiration of ’the time
previously limited;’ but to have been a creditor, he must have had a claim which he
could have presented and proved, before the committee; moreover, it must have
been the same claim which he now seeks to have allowed and not a mere contingent
claim. The holder of a contingent claim is not a creditor. Therefore it must be
concluded that section 690 does not provide for recommissioning the committee to
hear a contingent claim that has become absolute. Provision for that proceeding is
made in section 748 of the Code of Civil Procedure, but a jurisdictional fact required
by that section is that the contingent claim must have been presented to the
committee before the expiration of ’the time previously limited’ and mentioned in
the committee’s report as provided in section 746 of the Code.

"Let it be said that before the court can have jurisdiction under section 690 to
recommission the committee, an application must be made by a credit who was a
creditor before the expiration of ’the time previously limited,’ and is a creditor at the
time the application is made, by virtue of one and the same claim. But claimant-
appellee does not fit that requirement. In so far as his present claim was concerned,
he was a mere contingent claimant and therefore not a creditor of the estate, prior
to the expiration of ’the time previously limited."cralaw virtua1aw library

Words & Phrases, volume 2, page 1498, says:jgc:chanrobles.com.ph

"A ’contingent claim’ is one which has not accrued, and which is dependent on the
happening of some future event.

"A ’contingent claim,’ within the rule that claims against an estate which are not
contingent are barred if not presented within a certain time, is one depending upon
something thereafter to happen. Such a claim is not contingent after the happening
of the event.

"A ’contingent claim,’ within Comp. St., c. 23, seas. 258 et seq., is a claim against a
decedent, not absolute or certain, but depending upon some event after the death of
the testator or intestate which may or may not happen. A subsisting demand against
the estate of a deceased person which had matured and was capable of being
enforced during the lifetime of the deceased is not a contingent claim."cralaw
virtua1aw library

Plaintiff’s claim comes squarely within the last definition.

Defendant’s contention that the claim of the plaintiff is a contingent one is not
tenable.

In Hinlo v. De Leon (18 Phil., 221), this court, on page 230 of the opinion,
says:jgc:chanrobles.com.ph

"‘If there is a judgment for a deficiency,’ continues the section above quoted, ’after
the sale of the mortgaged premises, or the property pledged, in the foreclosure or
other proceeding to realize upon the security, he may prove his deficiency judgment,
before the committee against the estate of the deceased . . .’"

In Osorio v. San Agustin (25 Phil., 404), this court, on page 409 of the opinion,
says:jgc:chanrobles.com.ph

". . . In view of the fact that the plaintiff had elected to abandon the security given
him by his mortgage and to prosecute his claim before the committee, he forfeited
his right to bring an action upon the security in another separate and distinct action.
. . ."cralaw virtua1aw library

There is a clear distinction between the facts in that and this case. In pointing out
the distinction, Justice Carson, in his concurring opinion on page 409,
says:jgc:chanrobles.com.ph

"I concur in the disposition of this case.

"Merely to avoid possibility of misunderstanding, I think it well to point out that

under the provisions of section 708 of Act No. 190, part of which is quoted in the
opinion, it would appear that in case a creditor elects to rely upon his mortgage he
may foreclose his mortgage or realize upon the security by an ordinary action in
court, making the executor or administrator a party defendant; and if there is a
judgment for a deficiency after the sale of the mortgaged premises or the other
property pledged in the foreclosure or other proceeding, he may prove his
deficiency judgment before the committee and to that amount he may share in the
general assets of the estate of the deceased. In other words, a creditor holding a
claim against the deceased person secured by mortgage or other collateral security
may rely upon his security and institute an ordinary action based thereon without
abandoning his right to present his claim to the committee should the security not
be sufficient to pay the debt."cralaw virtua1aw library

That is this case. The construction for which the defendant contends would nullify
the second provision of section 708 of the Code of Civil Procedure, and leave it
without any legal force and effect.

The Code of Civil Procedure provides as follows:jgc:chanrobles.com.ph

"Sec. 689. Court to limit time for presenting claims. — The court shall allow such
time as the circumstances of the case require for the creditors to present their
claims to the committee for examination and allowance; but not, in the first instance,
more than twelve months, or less than six months; and the time allowed shall be
stated in the commission. The court may extend the time as circumstances require,
but not so that the whole time shall exceed eighteen months.

"Sec. 690. When time may be extended. — On application of a creditor who has
failed to present his claim, if made within six months after the time previously
limited, or, if a committee fails to give the notice required by this chapter, and such
application is made before the final settlement of the estate, the court may, for cause
shown, and on such terms as are equitable, renew the commission and allow further
time, not exceeding one month, for the committee to examine such claim, in which
case it shall personally notify the parties of the time and place of hearing, and as
soon as may be make the return of their doings to the court."cralaw virtua1aw
library

The contention of the defendant that the petitioner was not a creditor within the
meaning of section 690 is not tenable. Petitioner’s claim was based upon a judgment
rendered in a court of competent jurisdiction forty-nine days before the death of
Elser, and pending the appeal Rosenstock, as executor, on his own motion, was
made defendant as such, and the final judgment upon which the property was sold
was rendered against Rosenstock as executor of the Elser estate.

The defendant has filed an able and exhaustive brief, but has overlooked the
fundamental fact that the original judgment in this case was personally rendered
against the deceased while he was still living.

The judgment of the lower court is affirmed, with costs. So ordered.

G.R. No. L-27701 July 21, 1928

THE BANK OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
V. CONCEPCION E HIJOS, INC., and VENANCIO CONCEPCION,
defendants-appellants. HENRY W. ELSER, defendant-appellee.

Araneta & Zaragoza for plaintiff-appellant.

No appearance for defendants-appellants.
DeWitt, Perkins & Brady for defendant-appellee.

OSTRAND, J.:

It appears from the record that on July 6, 1921, the defendants Concepcion executed
a promissory note in favor of the plaintiff for the sum of P342,372.64, payable on
demand, and as security for payment, deposited 700 shares of the Philippine
National Bank as collateral with the plaintiff and gave it a mortgage on 5,680 square
meters of land, with improvements, situated on R. Hidalgo Street in Manila. The
defendants Concepcion defaulted in the payment of the note, and on February 3,
1922, the plaintiff bank instituted the present foreclosure proceedings.

Shortly afterwards, Henry W. Elser entered into negotiations with the Concepcions
and offered to take over the mortgaged property and assume the mortgage debt. To
this the Concepcions agreed on the condition that they be relieved of all liability for
the debt.

On March 23, 1922, Elser wrote the plaintiff bank the following letter:

DEAR SIR: Confirming our conversation of this morning, I take pleasure in

advising you that I have made arrangements with Mssrs. Puno & Concepcion
to take over their property on Calle R. Hidalgo, consisting of 5,680 square
meters, including all improvements thereon, and also 700 shares in the
Philippine National Bank mortgaged to you in the total sum of P342,000, and
by which arrangement I am to be substituted in the place and stead of Messrs.
Puno & Concepcion in the obligation to your bank.

I have present prospects of renting the entire property and in consideration

thereof I will undertake to pay to the bank on the obligation thus undertaken
by me, the sum of not less than five thousand pesos (P5,000) monthly on the
principal, together with interest every six months. I will also reduce the
mortgage not less than 25 per cent during the first year, not less than 50 per
cent during the second year, and the balance within the third year, without
prejudice, however, to my right to mortgage the property to any bonding
institution or to take up the mortgage myself at any time during the three
years period mentioned above, which I expect that I may be in a position to
do.

Yours very truly,

(Sgd.) H. W. ELSER

No answer to this letter was given by the bank, and it clearly appears from the
allegations in its amended complaint, and from the evidence, that it was unwilling to
release the Concepcions from their liability for the mortgage debt and insisted on
their confessing a judgment in the foreclosure proceedings. This the Concepcions
refused to do unless the bank would agree to bid in the mortgage property for the
full amount of the judgment.

After further conversations with the representatives of the plaintiff bank, Elser on
April 21, 1922, wrote in the following letter:

DEAR SIRS (Attention of Mr. Zaragoza): With reference to our recent

conversation regarding the R. Hidalgo property belonging to Venancio
Concepcion (Puno & Concepcion), I respectfully request that you confirm in
writing your verbal agreement that should the property in question become
 the property of your bank, in the amount of P342,000 plus interest to date,
that you will sell the same to me for the same amount.

This information is desired by the Attorneys for Venancio Concepcion, Mr. R.

M. Calvo, in order to satisfy himself that in case Messrs. Puno & Concepcion
accept judgment, turning over the property to you, that you in return will sell
the property to me for the above mentioned sum, and not less than that sum.

Trusting you will see your way clear to furnish this confirmation, in
accordance with our conversation, we are

Very truly,
(Sgd.) H. W. ELSER

It must be inferred from this letter that Elser had been led to understand that the
bank would bid in the land at the foreclosure sale for the full amount of the
judgment and sell it to him for the same price. It will be readily seen that this
proposition is entirely different from that contained in the letter of March 23d.

The plaintiff made no direct reply to the letter of April 21st, but Calvo, testifying for
the plaintiff, stated that on April 28, Elser invited him to a conference with Nolting,
the president of the bank, in regard to the matter; that on meeting Nolting, Elser
said: "Mr. Nolting, do you still adhere to your acceptation of the offer I have made
you in writing?" to which Nolting answered that he did not think that there was any
reason for him to go back on his word. He thereupon referred Elser and Calvo to
Zaragoza, who in some matters appears to have acted as counsel for the bank, for
further conferences. The negotiations did not lead to any action on the part of the
bank, but on May 5, 1922, Elser entered into an agreement in the form of bilateral
deed of sale, with V. Concepcion &Hijos, Inc., and Venancio Concepcion which
appears in the record as Exhibit C and reads as follows in translation from Spanish:

DEED OF PURCHASE AND SALE

This deed of purchase and sale executed in the City of Manila, P.I., this fifth day
of May 1922 A. D., by and between V. Concepcion &Hijos, Inc., a domestic
corporation duly organized under the laws of Philippine Islands domiciled at
No. 861 Calle R. Hidalgo, District of Quiapo, City of Manila, represented herein
by the president, Mr. Venancio Concepcion, by virtue of the powers granted
him by the Board of Directors of said corporation in a resolution dated May 2,
1922, a copy of which duly certified, is attached hereto and made a part
hereof, and Mr. Venancio Concepcion, of age, married with Mrs. Rosario San
Agustin and resident of City of Manila, his place of residence being in the
municipality of San Juan, Province of Rizal, P.I., as party of the first part, and
Mr. Henry W. Elser, of age, married with Mrs. Elaine Childs Elser, and a
resident of City of Manila, with her place of residence at No. 600 Calle M. H.
del Pilar, District of Malate, as party of the second part,

WITNESSETH:
Whereas, V. Concepcion e Hijos, Inc., is at present indebted to the Bank of the
Philippine Islands, in the sum of P342,372.64, Philippine currency with
interest thereon at the rate of 9 per cent per annum from September 30,
1921, to secure the payment of which, the firm of V. Concepcion e Hijos, Inc.,
and Mr. Venancio Concepcion as joint land several obligors, have executed in
favor of the creditor bank on the 6th of July, 1921, a deed of mortgage and one
of pledge upon the following properties:

A tract of land with the buildings of strong materials erected thereon, situated
on Calle Sa n Sebastian, District of Quiapo. Bounded on the N. by Calle San
Sebastian; on the E. by property Maximino Paterno and Manuel Zamora; on
the S. by property of the City of Manila; and on W. by the Estero de Curtidor;
containing an area of 5,686.80 square meters, more or less, of which land,
buildings and improvements, the aforesaid Venancio Concepcion is the
registered owner in accordance with the Land Registration Act, according to
transfer certificate of title No. 14019, issued by the registrar of deeds of the
City of Manila.

Seven hundred shares of stock of the Philippine National Bank, belonging to

Mr. Venancio Concepcion, issued to him and indorsed in the blank in favor of
the Bank of the Philippine Islands, described as follows: (Here follows the
numbers and amounts of the certificates of shares.)

Whereas on January 20, 1922, Mr. Venancio Concepcion, owner of the

property above described, in consideration of the fact that they were subject
to the payment of the sum of P342,372.64 with interest thereon at the rate of
9 per cent per annum, which was owing from V. Concepcion e Hijos, Inc., to
the Bank of Philippine Islands, as per deeds of mortgage and of pledge
executed on July 6, 1921, has sold, assigned, and transferred to said firm of V.
Concepcion e Hijos, Inc., the aforesaid properties for the sum of P290,000
Philippine currency, the agreed and stipulated price of the urban property
being P220,000, Philippine currency, and that of the 700 shares of stock of the
Philippine National Bank, the sum of P70,000 Philippine currency, as per
public document executed on said date before Mr. Recaredo Ma. Calvo, a
notary public in and for the City of Manila.

Whereas, on February 28, 1922 the Bank of the Philippine Islands, filed with
the clerk's office of the Court of First Instance of Manila, under No. 21537, a
complaint, against V. Concepcion e Hijos, Inc., and Venancio Concepcion for
the recovery of its mortgage credit evidenced by the deeds of mortgage and of
pledge executed on July 6, 1921, notwithstanding the offer made by V.
Concepcion e Hijos, Inc., to assign absolutely and forever to said creditor
entity the properties which are the subject matter of the mortgage and pledge
in full and total payment of their obligation.

Whereas, Mr. Henry W. Elser is willing to subrogate himself to the obligation

of V. Concepcion e Hijos, Inc., and Venancio Concepcion in favor of the Bank of
 Philippine Islands and release them from the total of said obligation
contracted by them on July 6, 1921, as per deeds of mortgage and of pledge
executed on said date, in consideration of the sale, assignment and transfer in
his favor of all the rights, interest, action or share that they have or may have
upon the properties described in said deeds of mortgage and pledge;

Now, therefore, we, V. Concepcion e Hijos, Inc., and Venancio Concepcion, in

consideration of the sum of one peso (P1) Philippine currency, which we have
this day and which we declare was paid to us to our complete satisfaction,
and of other important considerations, especially the subrogation into our
joint and several obligations in favor of the Bank of the Philippine Islands,
amounting to P342,372.64, Philippine currency, with interest thereon at the
rate of 9 per cent per annum from September 30, 1921, which said Mr. Henry
W. Elser hereby makes, binding himself, moreover, to release us from our
obligation contracted in favor of the Bank of the Philippine Islands on July 6,
1921, do hereby sell, assign, and transfer absolutely and forever to said Mr.
Henry W. Elser, his heirs and successors in interest the properties described
herein with the incumbrances created and existing in favor of the Bank of the
Philippine Islands.

That I, Henry W. Elser, accept this contract upon the precise terms in which it
is executed.

In testimony whereof, we sign third presents in place and on the date above-
mentioned.

V. CONCEPCION E HIJOS, INC.

(Sgd.) V. CONCEPCION
(Sgd.) V. CONCEPCION
(Sgd.) H. W. ELSER

Signed in the presence of:

(Sgd.) ERNESTO Ma. CALVO
GREGORIO BUHAY

The bank never gave notice of its conformity with the agreement above quoted but
of June 15, 1922, it petitioned the court to include Henry W. Elser as defendant in
the complaint, on the strength of the obligations assumed by him in said agreement.

On June 23, 1922, the defendants Concepcion answered said petition praying that
instead of merely being included, said Elser be substituted in their place as
defendants, on the ground that the plaintiff had accepted the substitution of Elser in
their place as its debtor.

On June 27, 1922, the trial court entered an order including Henry W. Elser as
defendant and one month later, the plaintiff filed an amended complaint against the
defendants Concepcion and Elser asking for a joint and several judgment against
them in the amount prayed for in the original complaint and for the foreclosure of
the mortgage securing the same.

On July 18, 1922, the defendants Concepcion filed a supplemental answer alleging
the consent of the plaintiff to the subrogation of Elser in their place with respect to
the obligations sued upon and asking for the dismissal of the case as to them on the
ground.

On October 16, 1922, the defendant Elser demurred to the amended complaint on
the ground that it failed to alleged that the plaintiff had consented to the
substitution of Elser in place of the Concepcions so as to render Elser personally
liable to the plaintiff. This demurrer was sustained by the court and due exception
was taken by the plaintiff.

On November 1, 1922, the plaintiff presented a second amended complaint, in which

it is alleged that the sale from the Concepcions to Elser was with the knowledge and
consent of the plaintiff but without waiver of it as right of action against the
Concepcions. The defendant Elser demurred on the ground that it did not appear
from the amended complaint that the plaintiff had accepted Elser as debtor and on
the further ground that there was no showing therein as to the disposition of the
collateral security held by the plaintiff for the same debt. This demurrer was
sustained on both grounds, on December 1, 1922.

On December 6, 1922, the plaintiff presented its third amended complaint, without
material change in the averments of the second amended complaint, and a third
demurrer thereto was sustained on December 28, 1922.

The plaintiff thereupon filed a fourth amended complaint, reiterating the allegations
of the third amended complaint, alleging that the defendant Elser entered into
possession of the mortgaged premises with plaintiff's consent; that plaintiff had not
sold the shares of the Philippine National Bank held by it as collateral, and asking for
judgment decreeing that said shares and the mortgaged property be sold under
order of the court, and that the defendants Concepcion and Elser be condemned to
pay the deficiency, if any there should be. A demurrer to this complaint was
sustained, on the ground that it failed to show a contractual relationship between
the plaintiff and the defendant Elser.

On March 2, 1923, the plaintiff presented a fifth amended complaint, similar to the
foregoing, but containing the additional allegation that the plaintiff accepted the
assumption of the mortgage by the defendant Elser "without releasing the liability of
the defendants" Concepcion. This complaint was demurred to on the ground that it
did not sufficiently state that the plaintiff had accepted the substitution of Elser in
place of the Concepcions, as the contract between them provided. The demurrer was
overruled and the defendant Elser excepted.

On April 2, 1923, the defendant Elser answered, denying generally and specifically
the allegations of the plaintiff's complaint. On the same date, C. W. Rosenstock, as
guardian of the defendant Elser, filed a cross-complaint alleging that at the time
Elser is alleged to have assumed the obligations of the Concepcions to the plaintiff,
he was of unsound mind that he had been induced to sign the same by false
representations on the part of the Concepcion to the effect that the plaintiff had
agreed that he be substituted in place of Concepcions with respect to the obligations
set up in the plaintiff's complaint and that the plaintiff would accept payment of the
same in monthly installments on account of the principal of not less than P5,000,
with interest payable every six months, and that the mortgage should be reduced
not less than 25 per cent the first year, not less than 50 per cent the second year,
and the balance within the third year, when, as a matter of fact, the plaintiff had not
agreed hereto or accepted said terms of payment, as the Concepcions well knew,
and had never accepted Elser's offer to the plaintiff made pursuant to said
representations, and praying for the reasons stated, that the deed from the
Concepcions to Elser, wherein he assumed the obligations of the former to the
plaintiff be cancelled. These allegations were denied by the plaintiff and the
defendants Concepcion in their replies.

Elser died on June 18, 1923, and on January 4, 1924, the plaintiff suggested the
death of the defendant Elser, and asked that the administrator of the estate, C. W.
Rosenstock, be substituted in his place as defendants, and that the action be
continued against Rosenstock in the capacity on the ground that this action is for the
foreclosure of a mortgage

On January 11, 1924, the attorneys of record for the defendant Elser filed an
opposition to the application to have the action continued against Rosenstock, in
substitution of Elser, this is not a foreclosure action, and hence this action, as to him,
abated by reason of his death, and any claim of the plaintiff against him should be
presented to the committee on claims and appraisals of his estate.

This objection was overruled and Rosenstock, as Elser's administrator, was

substituted in his place as defendant, by order of the court dated January 14, 1924,
and exception thereto was duly taken. Subsequently, Rosenstock became the
executor of Elser's estate, and as such, filed various amended answers and cross-
complaints.

The last amended cross-complaint was filed by him on August 9, 1924 in case No.
24485 of the Court of First Instance of Manila, in which the estate of the deceased
Elser was being administered. He repeated therein the allegations and prayer of his
cross-complaint as guardian filed on April 2, 1923, and referred to above. The last
amended answer was filed by him on August 21, 1925. It consisted of denial of the
allegations of the complaint and of the authenticity of the document whereby Elser
is alleged to have assumed the obligations of the defendants Concepcion to the
plaintiff; an allegation that at the time of execution thereof, Elser was of unsound
mind; and a statement of willingness to relinquished and abandon any rights Elser
might have acquired under said document in favor of the plaintiff.

After a lengthy trial, the court below, on January 22, 1927, rendered its decision
absolving the Elser estate from the complaint, ordering the Concepcions to pay the
plaintiff the sum of P342,372.64, with interest of 9 per cent and costs, and providing
for the sale of the mortgaged property, in case of non-payment of the judgment.

Both the plaintiff and the defendants Concepcion excepted to this judgment and
moved for a new trial on the usual statutory grounds. The motions were denied and
exceptions noted.

The case is now before this court on a joint bill of exceptions presented by the
plaintiff and the defendants Concepcion pursuant to stipulation. No briefs have been
filed by the Concepcions.

From the facts stated and from the pleadings it will be readily seen that as far as the
defendant Elser is concerned, the plaintiff alleged cause of action rests exclusively
on the deed of contract Exhibit C. The well known general rule is that a contract
affects only the parties and privies thereto. But there are exceptions to this rule and
the plaintiff contends that though it is neither a party nor a privy to the contract
here in question, the subrogation of Elser to the obligations of the Concepcions in
favor of the plaintiff as provided for in the contract, is a stipulation pour autrui upon
which the plaintiff may maintain its action

The nature and reach of the doctrine of the stipulations pour autrui is so thoroughly
discussed in the case of Uy Tam and Uy Yet vs. Leonard (30 Phil., 471), that no
further discussion thereof is here necessary. We wish , however, to emphasize the
fact that it was there held that in order to constitute a valid stipulation pour autrui,
it must be the purpose and intent of the stipulating parties to benefit the third
person may be incidentally benefited by stipulation. This conclusion is supported by
numerous authorities and is in complete harmony with the second paragraph of
article 1257 of the Civil Code, which reads as follows:

Should the contract contain any stipulation in favor of the third person, he
may demand its fulfillment, provided he has given notice of his acceptance to
the person bound before the stipulation has been revoked.

Applying this test, it seems clear that neither Exhibit C nor any other agreement
between the Concepcion and the Elser contained any stipulation pour autrui in favor
of the plaintiff. As stated in the appellee's brief:

The Concepcion owed the plaintiff a large sum of money and wanted to be
relieved of that obligation. Elser wanted the property which he had been
mortgaged to secure that obligation, and had to assume the obligation and
agree to secure the discharge of the Concepcion therefrom, in order to get the
property. Neither of them had any desire to confer any benefit to the bank.
Neither of them entered into the contract for the sake of the bank. It is
obvious that each entered into the contract impelled by the advantage
accruing to him personally as a result thereof.

We may add that the stipulation here in question is not merely for the assumption of
the mortgaged debt by Elser, but is a provision for the subrogation of Elser to the
Concepcion obligations to the plaintiff. Inasmuch as the mere assumption of the
mortgage debt by the purchaser of the mortgaged land does not relieved the
mortgagor from his liability, it might be said that some show of reason that by such
an arrangement the mortgagee will have two debtors for the same debt instead of
only one and that this furnishes additional security and is to the creditor's
advantage and for his benefit. But such is not the case where, as here, the stipulation
is for the subrogation of the purchasers to the obligation of the original debtor; if
such a stipulation is duly accepted by the creditor, it works a novation of the original
agreement and releases the original debtor from further liability. Such subrogation
is rarely for the benefit of the creditor and that, in the present case, it was not
believed to be of any advantage to the bank is well shown by the fact that the parties
were unable to obtain its written consent to the stipulation.

But assuming that the stipulation is for the benefit of a third person, the plaintiff is
nevertheless not in position to maintain its action against Elser. In order to be
enforceable, such stipulations must be accepted by the third person and not has not
been done here. The plaintiff asserts that it accepted the stipulations in part, but
that is not a sufficient acceptance. The ordinary rules of offer and acceptance are
applicable, and it is a cardinal rule of the law of contracts that in order to create a
binding agreement, the acceptance must be absolute, unconditional, and identical
with the terms of the offer; otherwise there is no meeting of the minds or an
expression of one and the same common intention, one of the essential elements of a
valid contract (Civil Code, art., 1257; Page on Contracts, sec. 1308, and authorities
there cited).

But the plaintiff argues that in American jurisprudence, the purchaser of the
mortgaged property who assumes the payment of the mortgage debt, may for the
reason alone sued for the debt by the creditor and that the rule is applicable in this
jurisdiction. Aside from the fact that we are not dealing with a mere assumption of
the debt, but with a subrogation, it may be noted that this court has already held that
the American doctrine in this respect is not in harmony with the spirit of our
legislation and has not been adopted in this country. In the case of E.C. McCullough
& Co. vs. Veloso and Serna (46 Phil., 1), the court. speaking through its present Chief
Justice, said:

The effects of transfer of a mortgaged property to a third person are well

determined by the Civil Code. According to article 1879 of this Code, the
creditor may demand of the third person in possession of the property
mortgaged payment of such part of the debt, as is secured by the property in
his possession, in the manner and form established by law. The Mortgage Law
in force at the promulgation of the Civil Code and referred to in the latter,
exacted, among other conditions, also the circumstance that after judicial or
notarial demand, the original debtor had failed to make payment of the debt
at maturity. (Art. 135 of the Mortgage Law of the Philippines of 1889.)
According to this, the obligation of the new possessor to pay the debt
originated from the right of the creditor to demand payment of him, it being
necessary that a demand for payment should have previously been made
 upon the debtor and the latter should have failed to pay. And even if these
requirements were complied with, still the third possessor might abandon the
property mortgaged, and in that case it is considered to be in the possession of
the debtor. (Art. 136 of the same law.) This clearly shows that the spirit of the
Civil Code is to let the obligation of the debtor to pay the debt stand although
the property mortgaged to secure payment of said debt may have been
transferred to a third person. While the Mortgage Law of 1893 eliminated this
provisions, it contained nothing indicating any change in the spirit of the law
in this respect. Article 129 of this law, which provides for the substitution of
the debtor by the third person in possession of the property, for the purposes
of giving notice, does not show this change and has reference to a case where
the action is directed only against the property burdened with the mortgage.
(Art. 168 of the Regulation.)

From what we have said it follows that the plaintiff can have no cause of action
against Elser, or rather against his estate. Assuming that Elser was of sound mind at
the time of the execution of Exhibit C — and that is a much debated question — the
Concepcion, and not the plaintiff might have maintained an action against the Elser
state; but that action is now barred through their failure to present their claim and
appraisal in the probate proceedings, and the plaintiff can therefore, not successfully
invoked article 1111 of the Civil Code, which in effect provides that after exhausting
the property of which the debtor may be in possession, the creditor may have
recourse to the debtor's credit and choses an action for the collection of unpaid
portion of the debt.

Counsel for the appellee also argue that the bank, having failed to present its claim
to the committee on claims and appraisal, it must be regarded as having elected to
rely on its mortgage alone and therefore can have no personal judgement against
the Elser estate. That is good law. Section 708 of the Code of Civil Procedure
provides as follows:

SEC. 708. Mortgage debt due from estate. — A creditor holding a claim against
the deceased, secured by mortgage or other collateral security, may abandon
the security and prosecute his claim before the committee, and share in the
general distribution of the assets of the estate; or he may foreclose his
mortgage or realize upon security, by ordinary action in court, making the
executor or administrator a party defendant; and if there is a judgment for a
deficiency, after the sale of the mortgaged premises, or the property pledge,
in the foreclosure or other proceedings to realize upon the security, he any
prove his deficiency judgment before the committee against the estate of the
deceased; or he may rely upon his mortgage or other security alone, and
foreclose the same at any time, within the period of statute of limitations, and
in that event he shall not be admitted as an creditor, and shall receive no
share in the distribution of the other assets of the estate;

As will be seen, the mortgagee has the election of one out of three courses: (1) He
may abandon his security and share in the general distribution of the assets of the
estate, or (2) he may foreclose, secure a deficiency judgment and prove his
deficiency judgment before the committee, or (3) he may rely upon his security
alone, in which case he can receive no share in the distribution of the assets of the
estate.

In this case the bank did not abandon the security and took no steps of any sort
before the committee within the time limit provided by the sections 689 and 690 of
the Code of Civil Procedure. The committed ceased to function long ago, and the
bank has now nothing to rely on except the mortgage. Internationally or not, it has
bought itself within the third course provided for in section 708; it has no
alternative.

But counsel for the plaintiff say that the amount of the deficiency, if any, could not
be proved before the foreclosure sale and had been effected; that section 708
expressly provide for the proof of the deficiency judgment before the committee
after the sale of the mortgaged property; that this provisions must be construed to
mean that the presentation and prosecution of the claim of the deficiency must be
made after, not before, the sale; and that if the mortgagee presents his claim from a
deficiency before a deficiency judgment have been rendered, he will loose his rights
under the mortgage and be regarded as having abandon his security.

This clearly a misconception of the statute, and the cases cited by the appellant in
support for its contention are not in point. Until the foreclosure sale is made, the
demand for the payment of deficiency is a contingent claim within the meaning of
sections 746, 747, and 748 of the Code of Civil Procedure, which sections reads as
follows:

SEC. 746. Claims may be presented to committee. — If a person is liable as

surety for the deceased, or has other contingent claims against his estate
which cannot be proved as a debt before the committee, the same may be
presented with the proof, to the committee, who shall state in their report
that such claim was presented to them.

SEC. 747. Estate to be retained to meet claims. — If the court is satisfied from
the report of the committee, or from proofs exhibited to it, that such
contingent claim is valid, it may order the executor or administrator to
retains in his hands sufficient estate to pay such contingent claim, when the
same becomes absolute, or if the estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors.

SEC. 748. Claim becoming absolute in two years, how allowed. — If such
contingent claims becomes absolute and is presented to the court, or to the
executor or administrator, within two years from the time limited for other
creditors to present their claims, it may be allowed by the court if not
disputed by the executor or administrator, and, if disputed, it may be proved
that the committee already appointed, or before others to be appointed, for
the purpose, as if presented for allowance before the committee had made its
report.
These sections are in entire harmony with section 708; the amount of the deficiency
cannot be ascertained or proven until the foreclosure proceedings have terminated,
but the claim for the deficiency must be presented to the committee within the
period fixed by sections 689 and 690 of the Code. The committee does not then pass
upon the validity of the claim but reports it to the court. If the court "from the report
of the committee" or from "the proofs exhibited to it" is satisfied that the contingent
claim is valid, the executor or administrator may be required to retain in his
possession sufficient assets to pay the claim when it becomes absolute, or enough to
pay the creditor his proportionate share if the assets of the estate are insufficient to
pay the debts. When the contingent claim has become absolute, its amount may be
ascertained and established in the manner indicated by sections 748 and 749. As
will be seen, the bank both could and should have presented its claim to the
committee within the time prescribed by the law. The concurring opinion of Justices
Malcolm and Fisher in the case of Jaucian vs. Querol (38 Phil., 707), contains a very
lucid expositions of the law on the subject and further comment is therefore
unnecessary.

The appeal is without merit and the judgment of the court below is affirmed with
the costs against the plaintiff-appellant. So ordered.

[G.R. No. 4232. November 7, 1908. ]

ELIX BAUTISTA, Plaintiff-Appellee, v. AQUILINA TIONGSON, ET AL., Defendants-

Appellants.

A. Velarde for Appellants.

C. Reyes for Appellee.

SYLLABUS

1. ESTATES; PARTITION; CIVIL PROCEDURE. — An action to enforce the partition of

real estate must be brought and proceeded with in accordance with the provisions
of sections 181 to 196 of the Code of Civil Procedure.

2. ID.; ID.; ACTION BY ADMINISTRATOR. — The administrator of an intestate estate

is not authorized by any of the sections 181-196 of the Code of Civil Procedure to
maintain an action to enforce the partition of real estate not included in the
inventory, or of which he did not take charge when he commenced to discharge his
office, but which is in the possession of a third party who alleges that he is not a
coheir or coowner but the exclusive owner of the same.

3. ID.; ID.; ACTION BY HEIRS. — The heirs of the deceased are alone entitled to
maintain an action to enforce the partition of real estate possessed by coheirs or
coowners in common with the deceased.

4. ID.; ID. MINORS; ACTION BY GUARDIAN. — In case one of the parties in interest is
a minor, the law, by section 195 of Act No. 190, expressly authorizes the guardian or
curator ad litem, with the approval of the court, to bring, or to intervene in an action
to enforce partition.

DECISION

TORRES, J. :

By an amended written complaint, dated the 29th of October, 1904, Felix Bautista,
administrator of the intestate estate of Ciriaco Tiongson, alleged: that the said
deceased Ciriaco Tiongson, and Aquilina Tiongson, were, until the 22d of July, 1901,
when the first named died, the owners pro indiviso of five parcels of land, one of
them situated in the place named Tinapayong or Catulinan. in the town of Baliuag,
and the other four in SapangMalaqui, SapangMunti, SapangBagbag and Maysasa,
within the municipality of Hagonoy, and all of them in the Province of Bulacan, their
area, location and boundaries being described in the said complaint; that one-half of
the said land appertained to said intestate estate, and the other half to the
defendant, Aquilina Tiongson; the latter and her husband, Domingo Tomacruz, were
the only parties who had administered and were then administering the aforesaid
property, having collected the rentals thereof without rendering an accounting of
their administration to anyone; and that at that time the said property was not
encumbered in favor of any other person; therefore, he prayed the court to order
that the same be partitioned in accordance with the law, and that the defendants be
instructed to render an accounting of their administration and deliver the balance, if
any there be, to the plaintiff.

In view of the foregoing amended complaint, the defendants reproduced their

previous answer, wherein it was set forth that they denied the first paragraph of the
complaint, for the reason that, at the time of the death of Ciriaco Tiongson, the only
plot of land held jointly by the latter and by Aquilina Tiongson was the first of those
described in the complaint, because the four remaining, the second, third, fourth,
and fifth, were owned exclusively by the defendants who had purchased the same
from the late Ciriaco Tiongson, in ignorance of the existence of plot No. 6; that they
denied the allegation in paragraph 2 of the complaint for the same reason given in
reference to paragraph 1, and also the allegation in paragraph 4, inasmuch as
Ciriaco Tiongson, while living, together with the defendants, administered the
undivided lands, and that, after his death, his widow, Marciana de Zulueta, as the
administratrix of the property of her seven minor children, received that portion of
the crops from the land described in paragraph 1 of the complaint belonging to the
intestate estate until the year 1903.

As a special defense they alleged: that the plaintiff lacked the capacity to bring this
action because the legal administration of the property of the late Ciriaco Tiongson
pertained to his widow who lived with her minor children, acting on behalf of the
latter; that, besides the rentals received by the widow of Ciriaco, she, on several
occasions, took from the defendants, on account of the rentals of the said land, the
sum of 1,402.45 pesos, and that the deceased, before his death, personally owed the
defendants the sum of 143.75 pesos; for which reasons they prayed that the
appointment of the administrator of the intestate estate of Ciriaco Tiongson be
annulled, and that the complaint be dismissed entirely; and, in the event that the
said nullity be not declared, that they be absolved from the complaint except in so
far as it relates to the partition of the land described in paragraph 1 thereof, without
prejudice to their claim against the property of the intestate for the amounts taken
by the late Ciriaco and his widow, with the costs against the plaintiff.

By a writing dated the 31st of October, 1904, Benito Mojica, with permission of the
court, presented a petition of intervention, alleging that he was an owner by virtue
of a contract of sale with a pacto de retro clause, entered into with the spouses
Domingo Tomacruz and Aquilina Tiongson for a period of three years from
November, 1902, of four parcels of rice land situated in SapangMalaqui,
SapangMunti, SapangBagbag, and Maysasa, in the municipality of Hagonoy, the area,
location and boundaries of which are stated; and having been informed that the
plaintiff, Felix Bautista, had filed a complaint against the said parties demanding the
partition of the property and that it be placed in the hands of a trustee, the said
administrator Bautista being aware of the sale with right of redemption, he prayed
that, after due process of law, the request for partition be denied with costs.

The case was tried and evidence adduced by the parties whose exhibits were made
of record. The court below entered judgment on the 4th of April, 1907, and allowed
the demand interposed by Felix Bautista as administrator of the intestate estate of
Ciriaco Tiongson, and, in consequence decreed the partition of the property
described in the amended complaint, and at the beginning of the judgment, on the
basis that one-half of the said property belonged to Aquilina Tiongson, and the other
half to the intestate estate of Ciriaco Tiongson, as property inherited by the latter
and by the said Aquilina from their late father, Emeterio Tiongson, further ordered
that Domingo Tomacruz should render an accounting of the administration of said
property within a period of fifty days. The petition for intervention presented by
Benito Mojica against Felix Bautista with respect to the rice lands in SapangMalaqui,
SapangMunti, SapangBagbag, and SapangMaysasa, above referred to, was dismissed
without special ruling as to costs.

The defendants and the intervener, upon being informed of the foregoing decision,
excepted thereto and made known their intention to appeal therefrom by a bill of
exceptions, and presented a motion for a new trial because the evidence did not
sufficiently justify the decision, and because the same was contrary to law. The
motion for a new trial was overruled; thereupon the defendants and the intervener
excepted to the last ruling in due course, and the said intervener agreed in writing to
the bill of exceptions presented by the defendants, and made it his own for the
purposes of his appeal to this court.

The proceedings instituted by Felix Bautista as administrator of the intestate estate

of Ciriaco Tiongson, wherein he asks for the partition of certain lands which the said
deceased and his sister, Aquilina Tiongson, inherited from their late father, Emeterio
Tiongson, and which they possessed pro indiviso, are governed by sections 181 to
196 of the Code of Civil Procedure.

No provision of the said sections authorizes an administrator of the property of an

intestate to bring an action demanding the partition of real estate owned pro
indiviso by the deceased, whose property he is administering, and by another
person.

In the above cited sections, the law refers to a coparcener, coheir, or other person
interested in the undivided property held, because any one of such persons is a real
party concerned in the partition. In cases like the present, where the property is
held by a person, not as a coheir but as the exclusive owner, the right of action for
partition, which supposes joint ownership or community of property, pertains only
to the heirs of the late Ciriaco Tiongson, not to the administrator who, when
claiming the division of real estate not included in the inventory, or which he did not
take charge of on commencing to exercise office, but which is alleged to belong to
the estate, is not authorized to represent the intestate succession of the property
administered by him; neither is he authorized to represent the heirs, because the
latter, as successors to the deceased, are the only parties who may maintain such an
action for partition of real estate held pro indiviso by coheirs or owners in common.
The matter should be decided in accordance with the provisions contained in the
first part of the Code of Civil Procedure.

Only in the event that one of the parties in interest were a minor, could he be
represented by his guardian, tutor or curator ad litem, with the court’s approval, to
institute an action for the partition of property or appear therein, under the
provisions of section 195 of the said code.

It is to be noted that in dealing with the partition of property, the law mentions the
personality of the guardian or curator who represents a minor, but no mention is
made of the executor or administrator, inasmuch as the partition of property which,
as a matter of fact, does not form a part of the inheritance, can not be regulated by
the sections of the Code of Procedure which refer to special proceedings in
connection with testate or intestate estates, but by those of the chapter on partition
of real property.

With regard to the rendering of accounts, the demand therefor presupposes that the
action for partition brought by the administrator was in accordance with the law
and that the same could be granted by the court below; once the latter is dismissed,
it follows that the former should likewise be denied.

Therefore, it is our opinion that the Judgment appealed from should be and is
hereby reversed, and that the administrator of the intestate estate of Ciriaco
Tiongson has no right to bring an action claiming the partition of real estate on the
ground that one moiety of the same belongs to the estate of the deceased. No special
ruling is made as to the costs in either instance. So ordered.

G.R. No. L-7075 March 25, 1912

RODRIGO ALBANO, administrator of the estate of the deceased Silverio

Agtarap, plaintiff-appellee,
vs.
CORNELIO AGTARAP, ET AL., plaintiffs-appellants.

A. Adiarte for appellants.

I. Bitanga for appellee.

ARELLANO, C.J.:

Lucio Agtarap owned several parcels of agricultural land in Laoag, Province of Ilocos
Norte, and at his death left four sons, one of whom, Silverio, died on the 10th of
September, 1907.

Upon the death of Silverio Agtarap, his widow, Juana Domingo, began special
proceedings for settlement of the intestate estate of her deceased husband by
petitioning for an administrator and Rodrigo Albano was appointed.

As such administrator Rodrigo Albano instituted a civil action improperly entitled

"in the matter of the claim for the widow's legal portion" against the other three
heirs of Lucio Agtarap, who are the two sons of his, called Cornelio and Nicolas and a
grandson named MelecioAgtarap; improperly so entitled, because in the present
civil action the matter involved is a claim in favor of the intestate estate to certain
property belonging to the decedent, against the three heirs of the said Lucio
Agtarap, who have taken themselves all the estate left by the latter, including the
fourth part which belongs to Silverio Agtarap, likewise a son of Lucio Agtarap.
Therefore the subject matter of this action can only be this coownership, if it exists,
in which the hereditary estate was left, and, if it does so exist, the partition of the
property among the four lawful coowners, the heirs of Lucio Agtarap, and
withdrawal of Silverio's portion in order to transfer it to his intestate estate.

The following are pertinent facts in this case: (1) It is proven that Lucio Agtarap is
the legitimate father of Silverio, Cornelio, and Nicolas Agtarap and the grandfather
of MelecioAgtarap, (2) it is admitted that Lucio Agtarap died leaving property; (3) it
is proven that the property left as his death by Lucio Agtarap has been seized by his
said descendants, now the defendants, without giving Silverio his share; (4) it is
proven that, at least, the property described in Exhibits B, C, D, E, F, G, H and I was
left by Lucio Agtarap.

According to law, one-fourth of this property belongs to Silverio Agtarap.

The judgment of the court below directs:

 That one-fourth part of this property be delivered to the administrator of the
intestate estate of the late Silverio Agtarap, as his legacy, so that, after proper
proceedings, their respective portion may be adjudicated to the widow and
other heirs of the said Silverio; without special finding as to costs.

This judgment is entirely in accordance with law.

The plaintiff also asked for the portion of the products of the coownership
corresponding to Silverio Agtarap, but the trial court ignored this request, as well as
that for some cattle included in the complaint, and that the plaintiff has not appealed
with regard to this omission, so it need not be considered here.

The judgment rightly says that after the proper proceedings under the law, there
may be adjudicated to the widow and other heirs of Silverio Agtarap, in due-
proportion, the fourth part which the defendants should deliver to the
administrator of the intestate estate of the said Silverio Agtarap; but not in this
action. The necessary procedure will be the special proceedings in the intestate
estate of Silverio Agtarap, in which may properly be presented the claim of the
administrator of the said intestate estate on behalf of Juana Domingo for her legal
portion as widow," as well as the proceedings for proving that Eugenia Agtarap is a
legitimate daughter in order to have her declared the sole heir of the whole of the
said fourth part of the property which corresponds to him whom she calls her
legitimate father. In the trial held for such purpose it will be determined who are the
heirs of the intestate estate of Silverio Agtarap; whether she who calls herself his
legitimate daughter, Eugenia Agtarap; or his brother Cornelio and Nicolas and his
nephew Melecio, all surnamed Agtarap.

The lawful usufruct pertaining to the widow will depend upon whether the alleged
daughter or the brothers and nephew of the deceased are entitled to the inheritance,
for if she who claims to be the daughter, Eugenia Agtarap be declared the sole heir
of the deceased Silverio Agtarap, the widow's share would be different from what it
would if the defendants in this case, as brothers and nephew of the deceased
Silverio Agtarap, are declared to be the sole heirs-in accordance with the various
provisions of the Civil Code in this respect.

Only in such special proceedings, wherein the necessary orders can be issued and
executed, can findings be made as to who are the heirs and what the portions belong
to them, the nature of their titles, and in case of usufruct what part pertains to each.

The judgment appealed from is affirmed, with the costs of this instance against the
appellants.

[G.R. No. 2370. December 12, 1905. ]

MARIANO ESCUETA, Plaintiff-Appellant, v. LEON SY-JUILLIONG, Defendant-

Appellee.
 Mariano Escueta, in his own behalf.

W.A. Kincaid, for Appellee.

SYLLABUS

1. CIVIL PROCEDURE; ESTATES OF DECEASED PERSONS; LAWYERS’ FEES. — One B

died intestate, leaving an estate of about 46,000 pesos consisting principally of his
share in his father’s estate, yet undivided. Held, That the settlement of B’s estate in
court was not so far unnecessary that a lawyer who had advised it could not recover
for his services and expenses therein.

2. ID.; ID.; ID.; PRESENTATION OF CLAIM. — The claim for such services, having
arisen after the death of the intestate, can not be presented to the committee
appointed in the proceeding for the settlement of the estate, for the allowance of
claims against it.

3. ID.; ID.; ID.; — ACTION FOR FEES. An action can not be maintained by the lawyer
in such case to recover for his services against the administrator as such. The
creditor’s remedy is either an action against the administrator as an individual or a
petition to the court in the proceeding for the settlement of the estate to have the
claim allowed as an expense of administration.

DECISION

WILLARD, J. :

In Manila, on the 21st of February, 1902, Joaquin Martinez Sy-Tiongtay executed his
last will, whereby he disposed of an estate of 212,862 pesos among his five children,
Carlos Pabia, Baldomero (the mother of these two being Chan-Sinnin), Felipa,
Manuel, and Faustina (the mother of these three being Ana Cuanci). Apparently the
testator’s business was connected with shipping interests. He afterwards died, the
exact date of his death not appearing in the record, and Sy-Giang was appointed his
executor and at the time this case arose was in possession of the property left by the
deceased. After the death of his father his son and her, Baldomero, died, leaving no
will, and leaving as his only heirs his brothers and sisters above named. When
Baldomero died the property left by his father had not been divided, and he had an
interest therein.

After the death of Baldomero, Carlos Pabia, his brother, employed the plaintiff, who
is a lawyer, to procure the appointment of an administrator of the estate of
Baldomero and to attend to the settlement of that estate in the Court of First
Instance. The plaintiff, by virtue of such employment, performed services and
expended money in procuring the appointment of the administrator, and in other
work connected with the settlement of the estate. The person appointed as
administrator of the estate of Baldomero was Carlos Pabia. Carlos Pabia died in the
month of February, 1904, and the defendant was appointed administrator of the
estate of Baldomero in succession to said Carlos, and this action was commenced
against the defendant in his capacity as administrator of said estate, to recover the
value of such services and the money so expended.

The court below entered judgment in favor of the defendant on the ground that the
services rendered by plaintiff were entirely unnecessary; and that there was no
occasion for the appointment of an administrator of the estate of Baldomero. We can
not agree with this opinion. Baldomero left an estate of about 46,000 pesos. Almost
all of it consisted of his interest in his father’s estate. This estate had not been
divided and was in the hands of the executor of that estate. It appeared from the
evidence that this executor refused to deliver any of the property to the
administrator of the estate of Baldomero, or to the heirs of the latter. It also appears
that the question as to whom such heirs are as now in litigation in court. Under
these circumstances it seems to us that the appointment of an administrator and the
settlement of Baldomero’s estate in the probate court was necessary. The final
decree rendered in the proceeding under the provisions of section 753 of the Code
of Civil Procedure would be a determination of the question as to who the heirs of
Baldomero were, and when such decree was presented to Sy-Giang, the executor of
the estate of the father, he would be obliged to deliver the interest of Baldomero to
the persons named in that decree.

Moreover, in a case where there is an estate of 46,000 pesos, and there are no
known debts, if not necessary it is at least extremely advisable that an administrator
be appointed and the estate regularly administered in the Court of First Instance,
exercising its probate jurisdiction, for the purpose of having the fact that there are
no debts conclusively determined. When an estate is regularly administered in the
Court of First Instance, and commissioners appointed before whom claims must be
presented within the time fixed in the order, they are by law, with some few
exceptions, barred unless so presented. This time may be limited by the court to six
months. It is important to the heirs of an estate to know as soon after the death of
the intestate as possible what claims exist against it. If they then know that demands
are made against it, they have an opportunity to ascertain the facts relating to such
demands when evidence concerning their validity can be easily obtained.
Unfounded claims in such cases can be more easily defeated than they could if they
were presented several years after the death of the intestate.

So far from the services of the plaintiff being unnecessary in this case, we think that
he acted wisely in advising his client that the estate of Baldomero should be
regularly administered in court, and we think he has a claim for the amount of
money he expended on account of the estate, and for the reasonable value of his
services.

The question remains, however, against whom this claim can be enforced by him.
The claim or cause of action arose after the death of Baldomero. It was therefore not
a proper claim to be presented before the commissioners appointed in Baldomero’s
estate. (Philippine Trading Company, Ltd., v. Crossfield, Judge. 1)

The contract which the plaintiff made was made with Carlos Pabia. If it was made
with Carlos Pabia as an individual, then the plaintiff’s cause of action is against him.
If it was made with Carlos Pabia as the administrator of the estate of Baldomero, the
question arises whether such a contract imposes any direct liability upon the estate
which the creditor can enforce by an action; whether he can secure a judgment
which will be binding and conclusively upon the estate and upon all the persons
interested therein.

The provisions of the present Code of Civil Procedure relating to the settlement of
estates of deceased persons are taken from similar provisions in the United States.
There the decisions, which are numerous, are practically unanimous in holding that
in a case like the present, the contract made between the administrator and the
lawyer does not bind and estate to such an extent that the lawyer can maintain an
action against it and recover a judgment which is binding upon it. In such a case the
creditor has two remedies: He can prosecute an action against the administrator as
an individual. If judgment is rendered against the administrator and it is paid by
him, when he presents his final account to the Court of First Instance as such
administrator he can include the amount so paid as an expense of administration.
The creditor can also present a petition in the proceeding relating to the settlement
of the estate, asking that the court, after notice to all persons interested, allow his
claim and direct the administrator to pay it as an expense of administration.
Whichever course is adopted the heirs and other persons interested in the estate
will have a right to inquire into the necessity for making the contract and the value
of the work performed by the attorney.

If Carlos Pabia were now alive the plaintiff might have a right of action against him,
but under the rule above stated he has no right of action against the present
defendant, because he (the present defendant) is not in any way connected with
Carlos Pabia. He is not his executor or administrator. The estate which he present
defendant represents is the estate of Baldomero, and against that estate, as we have
seen, an ordinary action can not be maintained by the plaintiff.

The court below ordered the action to be dismissed. This judgment should be
modified so as to provide that the dismissal should be without prejudice to the right
of the plaintiff to prosecute his claim against the person responsible therefor, or to
make an application in the proceeding for the settlement of the estate of Baldomero
for its allowance and payment. As so modified the judgment is affirmed. No costs
will be allowed in this court, and after the expiration of twenty days let judgment be
entered in accordance herewith and the case be returned to the court below for
execution of said judgment. So ordered.

[ G.R. No. 45736, May 26, 1939 ]

 IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED EMETERIO
LOPEZ. CONCEPCION LOPEZ, PETITIONER AND APPELLEE, VS. ADELA LOPEZ ET
AL., OPPOSITORS AND APPELLANTS.

DECISION

MORAN, J.:
The primary issue raised in this appeal is whether or not Concepcion Lopez is an
acknowledged natural daughter of Emeterio Lopez who died intestate, leaving no
legitimate descendants, ascendants or widow.
Concepcion Lopez filed a petition in the intestate proceedings of the deceased
Emeterio Lopez, claiming to be an acknowledged natural daughter of the deceased
and praying that she be declared his universal heiress entitled to a summary award
of his estate, same being valued at less than six thousand pesos (P6,000), The
oppositors-appellants, thru Attorney Simplicio B. Pena, filed an opposition, denying
petitioner's claim and praying that, as they are nephews and nieces of the deceased,
they be adjudged entitled to the property left by him. Concepcion Lopez filed later
an amended petition, alleging that, according to a new assessment, the estate was
worth nine thousand pesos (P9,000) and "that, therefore, its distribution could not
be made summarily but thru regular administration proceedings. Accordingly, an
administrator was appointed who, thru Attorney Simplicio B. Bena, filed later a
motion for a declaration of heirs and prayed that the oppositors-appellants be so
adjudged. After hearing, the court issued an order declaring the petitioner an
acknowledged natural daughter of the deceased entitled to the rights accorded her
by law. The oppositors appealed.
Contrary to appellants' contention it is a well-settled rule that a person claiming to
be an acknowledged natural child of a deceased need not maintain a separate action
for recognition but may simply intervene in the intestate proceedings, by alleging
and proving therein his or her status as such, and claiming accordingly the right to
share in the inheritance. (Conde vs. Abaya, 13 Phil., 249; Severino vs. Severino, 44
Phil., 343, 348; Gaas vs. Fortich, 54 Phil, 196.)
The petition filed by Concepcion Lopez in the intestate proceedings is alleged to be
insufficient. It is said that there is no prayer therein that she be declared an
acknowledged natural child, but only that she be adjudged universal heiress, of the
deceased. In the body of the petition there is an allegation that she is a natural child
of the deceased and has been in an uninterrupted possession of such status. And
inasmuch as the recognition of her status is a prerequisite to her right to heirship,
her prayer that she be declared universal heiress implies a like prayer that she be
recognized as an acknowledged natural child. Furthermore, it is a well-settled rule
of pleadings, applicable to motions or petitions, that the prayer for relief, though
part of the pleading, is no part of the cause of action or defense alleged therein, and
the pleader is entitled to as much relief as the facts duly pleaded may warrant.
(Rosales vs. Reyes and Ordoveza, 25 Phil., 495; Aguilar vs.Rubiato and Gonzalez Vila,
40 Phil., 570; Yañez de Barnuevo vs. Fuster, 29 Phil., 606; Allarde vs. Abaya, 57 Phil.,
909; Cf. Cohen and Cohen vs. Benguet Commercial Co., 34 Phil., 526, 533.)
The facts found by the lower court as basis for the declaration that the petitioner
had been in an uninterrupted possession of the status of natural child of the
deceased, are as follows:
"De las pruebaspracticadas por la representacion de dicha Concepcion Lopez se
hanestablecido los siguienteshechos: Que Concepcion Lopez es hija natural del
finadoEmeterio Lopez habida con Juana Cuison, quienesdesde el nacimiento de
aquellahanestadoconviviendocomo marido y mujer, siendo ambos solteros, hasta
que falleciodicha Juana Cuison; que Concepcion Lopez nacio el ano 1890 enLagonoy,
Camarines Sur, habiendosidodesdeentoncesmantenida por su padre,
quiendurantesuvida ha costeadotodas las necesidades de Concepcion Lopez,
tratandolacomosuverdaderahija, puescadavez que aquel le Ilamaba a esta lo
haciallamandola con el apodo de 'Siong' y Concepcion, a suvez, le contestaba a su
padre 'papa;' que dicha Concepcion Lopez ha estadosiempreviviendo con sudifunto
padre Emeterio Lopez hasta que estefallecio el 24 de junio de 1931."
In previous cases, similar facts were held to be sufficient to entitle a natural child to
recognition, (Cf. Dizon vs. Ullmann, 13 Phil, 88; Allarde vs. Abaya, supra;
Dalistan vs. Armas, 32 Phil., 648; see also decision of the Supreme Court of Spain of
Nov. 7, 1896.)
Appellants claim that they had no notice either of the petition for the declaration of
heirs or of the date set for the hearing thereof. We find in the record no evidence
affirmatively showing that they had no such notice; therefore, the presumption of
regularity of proceedings should stand. In the motion for reconsideration filed by
them, the lack of notice is alleged; but the motion is not even verified. Besides,
according to the record Attorney Simplicio B. Pena was the counsel for both the
administrator and the oppositors-appellants. The petition for declaration of heirs,
although signed by Attorney Simplicio B. Pena as "abogado del administrador", was,
in fact, a petition filed in behalf of the oppositors-appellants as their right to
succession is therein asserted and prayed for. Under these circumstances, there
exists sufficient ground for holding, as we do hold, that the oppositors-appellants
had notice of the petition as well as of the hearing where the said attorney was
present.
Order is affirmed, with costs against appellants.

G.R. No. L-30453 December 4, 1989

ANGELINA PUENTEVELLA ECHAUS, in her own behalf and as Administratrix of

the Estate of Luis Puentevella, assisted by her husband, RENE
ECHAUS, petitioner,
vs.
HON. RAMON BLANCO, as Judge of the Court of First Instance of Iloilo, and
PHILIPPINE COMMERCIAL & INDUSTRIAL BANK, as Administrator of the
Testate Estate of the late Charles Newton Hodges, AVELINA A. MAGNO, as
Administratrix of the Testate Estate of the late Linnie Jane
Hodges, respondents.
Sarmiento, Guatelara& Associates and Nepomuceno, Hofileña& Guingona for
petitioner.

Rizal R. Quimpo& Cornelio P. Ravena for respondents A.A. Magno& Judge R. Blanco

T. U. Benedicto& Associates for respondent PCIB.

MEDIALDEA, J.:

This is a petition for mandamus seeking to compel respondent presiding judge of the
then Court of First Instance of Iloilo (now Regional Trial Court) in Special
Proceedings No. 1672 to issue an order directing respondent Philippine Commercial
and Industrial Bank (PICB) as administrator of the estate of the late Charles Newton
Hodges (C.N. Hodges) to pay herein petitioner the amount of eight hundred fifty-one
thousand four hundred seventy- two pesos and eighty-three centavos (P851,472.83)
with legal interest, adjudged in Civil Case No. 6628.

The antecedent facts of the instant case are as follows:

Herein petitioner Angelina PuentevellaEchaus, in her own behalf and as

Administratrix of the intestate estate of her deceased father Luis Puentevella,
assisted by her husband, Rene Echaus filed a complaint on May 30, 1962 against
Charles Newton Hodges (C.N. Hodges) praying for an accounting of the business
covering the Ba-Ta Subdivision, the recovery of her share in the profits and
remaining assets of their business and the payment of expenses and moral and
exemplary damages (p. 10, Rollo). The complaint was docketed as Civil Case No.
6628 of the Court of First Instance of Negros Occidental.

On July 20, 1962, C. N. Hodges, through counsel, filed his Answer (p. 10, Rollo).

Trial on the merits commenced on December 7, 1962, with the testimony of

Angelina Echaus (p. 12, Rollo). Sometime thereafter, counsel for C. N. Hodges
manifested that defendant C. N. Hodges died on December 25, 1962. No motion to
dismiss was filed by C. N. Hodges' counsel. On February 14, 1964, the trial court
ordered the substitution of the Philippine Commercial and Industrial Bank (PCIB),
as administrator of the estate of deceased C. N. Hodges, as party defendant. No
objection to the order was interposed by PCIB.

A petition for the settlement of the estate of C. N. Hodges was instituted before the
Court of First Instance of Iloilo, the date of which does not appear in the records,
and docketed as Special Proceedings No. 1672. A notice to creditors was published
in "Yuhum" a newspaper of general circulation in its issues of March 13, 20 and 27,
1963 (p. 190, Rollo).
On November 12, 1966, the parties in Civil Case No. 6628 submitted a stipulation of
facts and submitted the case for decision on the basis of said stipulation of facts (p.
12, Rollo). The parties also agreed in the stipulation of facts that:

1. The parties, being duly represented in the panel of Commissioners

constituted by this Honorable Court, shall be bound by the
Commissioners' findings on the questions of facts presented to them
for determination, if such findings are accepted by this Honorable
Court in its Decision.

2. With a view to the, speedy settlement and termination not only of

the Estate of C. N. Hodges (Special Proceedings 1672 of the Court of
First Instance of Iloilo pending since 1962) but also of the estate of Luis
Puentevella (Special Proceedings 1968 of the Court of First Instance of
Negros Occidental pending since 1951), in accordance with the letter
and spirit of the Rules of Court, and relying upon the wisdom and
impartiality of the Presiding Judge of this Honorable Court who is now
on the point of closing a brilliant and exemplary career on the Bench,
the parties shall accept its Decision herein as final.

xxx xxxxxx

(p. 20, Rollo)

On December 5, 1966, judgment was rendered by the trial court in favor of plaintiff
Angelina F. Echaus, the dispositive portion of which states:

IN VIEW OF ALL THE FOREGOING, the defendant, in its capacity as

Administrator of the Estate of Charles Newton Hodges is hereby
ordered to pay the plaintiffs the sum of EIGHT(Y) HUNDRED FIFTY-
ONE THOUSAND FOUR HUNDRED SEVENTY-TWO PESOS and EIGHTY
THREE CENTAVOS (P851,472.83) with legal interest thereon from date
of judgment until paid. All other claims arising from the counterclaim,
and third-party complaint, not otherwise adjudicated, are hereby
dismissed, with costs against the defendant,

IT IS SO ORDERED.

Bacolod City, Philippines, December 5, 1966.

(SGD) EDUARDO D.
ENRIQUEZ Judge

(p. 41, Rollo)

On January 21, 1967, the same trial court issued an order granting plaintiff's motion
for the issuance of a writ of execution (p. 43, Rollo) against PCIB. However, the writ
was not enforced as plaintiff opted to file a motion dated February 20, 1967 (pp. 44-
46, Rollo) in Special Proceedings No. 1672 (estate proceedings of deceased C. N.
Hodges) for the payment of the judgment. Herein respondent Avelina A. Magno, as
administratrix of the estate of the deceased Linnie Jane Hodges (wife of C. N.
Hodges) opposed the motion (p. 3, Rollo). Meanwhile, in Civil Case No. 6628, Avelina
Magno, filed a petition for relief from judgment on March 27, 1967 and a motion to
intervene dated April 24, 1967 (p. 57, Rollo). On June 6, 1967, the heirs of C. N.
Hodges filed a motion to intervene in the same Civil Case No. 6628. On July 20, 1967,
respondent Judge Ramon Blanco, presiding judge of the Court of First Instance of
Iloilo City, Branch V, taking cognizance of Special Proceedings No. 1672, issued on
Order (pp. 52-56, Rollo) holding in abeyance the resolution of the motion of
Angelina Echaus for payment of the judgment rendered in her favor in Civil Case No.
6628, until after the resolution of the "Petition for Relief from Judgment" filed by
Administratrix Magno before the Court of First Instance of Negros Occidental in Civil
Case No. 6628.

On November 23, 1967, the petition for relief from judgment was denied on the
ground that Magno, as administratrix of the estate of Linnie Jane Hodges was not a
party to the case (p. 58, Rollo). The twin motions to intervene filed by the heirs of C.
N. Hodges and Avelina Magno, as administratrix of the estate of Linnie Jane Hodges
were likewise denied on the ground that pleadings in intervention are allowed only
before or during the trial and not when a final and executory judgment had already
been rendered (p. 61, Rollo).

In a motion (pp. 66-68, Rollo) dated November 25, 1968, Angelina P. Echaus prayed
for the resolution of her previous motion to direct payment of the judgment credit
which was held in abeyance, stating that the petition for relief from judgment filed
in Civil Case No. 6628 was dismissed by the trial court which dismissal has become
final and executory in view of the failure of Avelina Magno to file a record on appeal
on time.

On February 26, 1969, respondent Judge Ramon Blanco issued an Order (pp. 72-
74, Rollo) reiterating his position that the motion to direct payment of the judgment
credit cannot yet be resolved and holding in abeyance the resolution thereof in view
of the writ of preliminary injunction issued by the Supreme Court in G.R. Nos. L-
27860 and L-27896, (PCIB v. Blanco), enjoining respondent judge from hearing
Special Proceedings Nos. 1307 and 1672, entitled "Testate Estate of the late Linnie
Jane Hodges" and "Testate Estate of Charles N. Hodges," respectively. It is noted that
in the same Order, respondent judge mentioned that the writ of preliminary
injunction issued by the Supreme Court was clarified in another resolution dated
October 4, 1967 to the effect that he (respondent judge) is not restrained from
approving final deeds of sale executed by the Administrator PCIB covering
properties of the respective estates and that he can act on such other routinary
administrative matters necessary for the gathering and preservation of the estate
(pp. 73-74, Rollo).

The pertinent portion of said Order states:

 In G.R. Nos. L-27860 and L-27896, PCIB vs. Blanco, the Supreme Court
on August 12, 1967 issued a writ of preliminary injunction restraining
the presiding judge of this Branch V from hearing Sp. Proc. 1307 and
1672 of the Court of First Instance of Iloilo entitled 'Testate Estate of
the late Linnie Jane Hodges and Testate Estate of C. N. Hodges' which
writ of preliminary injunction was clarified by the Supreme Court in its
resolution of October 4, 1967 to the effect that the presiding judge of
this Branch V is not restrained from approving final deeds of sale
executed by the administrator PCIB covering properties of the said
estate and that the presiding judge of this Branch can act on such other
routinary administration matters necessary for the gathering and
preservation of the estate.

In view therefore of the said writ of preliminary injunction, it is the

considered opinion of the undersigned presiding judge that he cannot
act, meanwhile, on the motion or motions and the oppositions thereto
taking into account that the said motions involve substantive and
mandatory procedural, requirements considering that the decision of
the Court of First Instance of Negros Occidental of Civil Case 6628 is
being questioned by the oppositors as a money claim and as such
should have been prosecuted in the probate court.

WHEREFORE, unless allowed by the Supreme Court to resolve the

instant motions and oppositions thereto thus further clarifying the writ
of preliminary injunction which was issued on August 12, 1967, the
resolution on the said motions and oppositions thereto is thereby held
in abeyance.

SO ORDERED.

In a manifestation (pp. 69-71, Rollo, Annex "H" of Petition) dated February 28, 1969,
petitioner manifested that private respondent Avelina Magno's petition for
certiorari and mandamus (G.R. L- 30013) filed before this Court questioning the
validity of the decision in Civil Case No. 6628 was dismissed for lack of merit on
January 15, 1969 (p. 109, Rollo). Still, petitioner failed to obtain an affirmative
response to their motion.

Petitioner then filed the instant petition for mandamus dated April 21, 1969
seeking: a) to set aside respondent judge's order of February 26, 1969; and b) to
order PCIB to pay the judgment credit in Civil Case No. 6628.

It is the contention of petitioner that the judgment in Civil Case No. 6628 is now final
and executory and the execution thereof becomes a matter of right under Rule 39,
Section 1 of the Rules of Court. The duty to order the execution of a final and
executory judgment is ministerial and the failure of respondent judge to issue such
order is a proper case for mandamus.
On the other hand, private respondents contend that the judgment rendered in Civil
Case No. 6628 is null and void for having been rendered without jurisdiction. Money
claims against a defendant who dies without a judgment having been rendered in
the Regional Trial Court shall be dismissed and prosecuted as a claim in the estate
proceedings as laid down under Section 21, Rule 3 of the Rules of Court. This
procedure was not followed in Civil Case No. 6628. Also, even, if it is assumed that
the judgment in the said civil case is valid, the claim presented in the estate
proceedings is already barred by the statute of non-claims.

It must be noted that Civil Case No. 6628 which is a money claim, was Instituted
during the lifetime of C. N. Hodges. During its pendency and before a decision could
be rendered by the Regional Trial Court hearing the case, C. N. Hodges died. Upon
his death, he was substituted by PCIB as administrator of his estate. Being a money
claim, said civil case should have been dismissed and instituted as a money claim in
the intestate estate of C. N. Hodges (Sp. Proc. No. 1627) in accordance with Section
21 of Rule 3 of the Revised Rules of Court, which provides:

Sec. 21. Where claim does not survive.-When the action is for recovery
of money, debt or interest thereon, and the defendant dies before final
judgment in the Court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided in these rules.

However, this is not to suggest that because the claim of petitioner was pursued to
its conclusion in Civil Case No. 6682 instead of being dismissed and filed as a money
claim in Special Proceedings No. 1672, the judgment rendered therein is null and
void. The case of Ignacio v. Pampanga Bus Co., Inc., L-18936, May 23, 1967, 20 SCRA
126, is in point. In the said case, Pampanga Bus Co., Inc., (Pambusco) filed a suit to
collect P105,000.00 against defendants Valentin Fernando and Encarnacion
ElchicoVda. de Fernando. The latter died during the pendency of the case. On
Pambusco's motion, the court ordered Jose Nicolas, then Administrator, to
substitute for deceased Encarnacion ElchicoVda. de Fernando as one of the
defendants. No objection to the order was registered. A judgment was rendered
therein which became final. Pambusco then moved in 'the intestate proceedings of
the deceased for the payment of the judgment credit. The administratrices opposed.
Pambusco's motion was granted. This order admitting Pambusco's claim was
brought to us. We ruled therein that:

1. xxx xxxxxx

The philosophy behind the rule which provides for the dismissal of the
civil case is that, upon the death of a defendant, all money claims
should be filed in the testate or intestate proceedings 'to avoid useless
duplicity of procedure.' Obviously, the legal precept just quoted is
procedural in nature. It outlines the method by which an action for
recovery of money, debt or interest may continue, upon the terms
therein prescribed. whether the original suit for the recovery of money
as here-proceeds to its conclusion, or is dismissed and the claim
 covered thereby filed with the probate court, one thing is certain: no
substantial rights of the parties are prejudiced.

2. ... . Now that the judgment has become final, the estate cannot be
heard to say that said judgment-reached after a full dress trial on the
merits-will now go for naught. The estate has thus waived its right to
have Pambusco's claim re-litigated in the estate proceedings. For,
though presentment of probate claims is imperative, it is generally
understood that it may be waived by the estate's representative. And,
waiver is to be determined from the administrator's 'acts and conduct.'
Certainly, the administrator's failure to plead the statute of non-claims,
his active participation, and resistance to plaintiff's claim, in the civil
suit, amount to such waiver.

3. Courts are loathe to overturn a final judgment. Judicial proceedings

are entitled to respect. Non quieta movere. Plaintiff's claim has passed
the test in three courts of justice: the Court of First Instance, the Court
of Appeals and this Court. The judgment in plaintiff's favor should be
enforced. Appellant's technical objection-after judgment had become
final in the civil case that plaintiff's claim should have been litigated in
the probate court does not impair the validity of said judgment. For,
such objection does not go into the court's Jurisdiction over the subject
matter.

Moreover, when PCIB as administrator of the estate of C. N. Hodges was ordered to

be substituted as defendant, it registered no objection to the order. Thus, even if We
admit for the sake of argument that the trial court, after the death of C. N. Hodges
has no jurisdiction to render a judgment therein, the argument must fail. PCIB,
participated actively in the said case. It did not appeal the decision rendered therein,
neither did it raise the issue of jurisdiction ion at any stage. It has been consistently
held by this court that while lack of jurisdiction may be assailed at any stage, a
party's active participation in the proceedings before the court without jurisdiction
will estop such party from assailing such lack of jurisdiction (Tajonera v. Lamaroza,
(1981), 110 SCRA 438; Nieta v. Manila Banking Corp., (1983), 124 SCRA 455, cited in
Sps. Antonio Martinez and Benedicta Balatbat v. The Hon. Judge de la Merced, et al.,
G.R. No. 82039. June 20, 1989).

Of more importance is the fact that the validity of the decision in Civil Case No. 6628
had been passed upon by us with finality in G.R. No. L-30013 (PCIB v. Blanco). In
that case, the estate of C. N. Hodges and Linnie Jane Hodges questioned the decision
of the trial court dismissing the petition for relief from judgment. We dismissed the
petition for lack of merit on January 15, 1969 (p. 109, Rollo).

Private respondent Avelina Magno, in her memorandum in lieu of oral argument.

alleged that the Judgment sought to be enforced is barred under the Rules of Court
(p. 180, Rollo,). The proceedings for the settlement of the estate of C. N. Hodges was
opened in 1962 and the notice to creditors was published in "Yuhum" a newspaper
of general circulation in its issues of March 12, 10, and 27, 1963. Under Section 2,
Rule 27 of the Rules of Court, the time provided for filing claims against the estate
shall be stated by the court in the notice, which shall not be more than twelve (12)
months nor less than six (6) months after the date of its first publication. Since
petitioner filed her motion to direct payment only on February 20, 1967, which is
more than four years from the publication of the notice then, it is already barred.

The above argument of private respondent is not correct. The Rules of Court allows
a creditor to file his claim after the period set by the court in the notice to creditors,
provided the conditions stated in the rules are present. The rule provides:

Sec. 2. Time within which claims shall be filed.-... . However, at any time
before an order of distribution is entered, on application of a creditor
who has failed to file his claim within the time previously limited, the
court may, for cause shown and on such terms as are equitable, allow
such claim to be filed within a time not exceeding one (1) month. (Rule
86)

It is clear from the foregoing (Section 2 of Rule 87 [now Rule 86]) that the period
prescribed in the notice to creditors is not exclusive; that money claims against the
estate may be allowed any time before an order of distribution is entered, at the
discretion of the court for cause and upon such terms as are equitable (Quisumbing
v. Guison, 76 Phil. 730; Edmands v. Phil. Trust Co., G.R. No. L-2670, September 29,
1950, 48 O.G. 139; Paulin v. Aquino, G.R. No. L-11267, March 20.1958: Afan v. de
Guzman, G.R. No. L-14715, April 28, 1960). At the time petitioner's motion to direct
payment of the judgement credit was filed, no order of distribution was issued yet.
Also, it is worthy to cite herein a situation, similar to the case at bar. which was
considered by this court as a good excuse for the late filing of a claim against the
decedent:

Here the claim filed in the probate court on February 25,1959, while the defendants
in the civil case were still perfecting their appeal therein. The record does not show
that the administrator objected thereto upon the ground that it was filed out of
time. The pendency of that case, we are persuaded, to say is a good excuse for
tardiness in the filing of the claim. (In parimateria: De Rama v. Palileo, L-18935, Feb.
26, 1965). An the order of the final distribution is still to be given. (Ignacio v.
Pambusco, supra.)

It is also petitioner's contention that properties under custodia legis may be reached
for the satisfaction of a judgment, citing the case of Reganon v. Imperial, G.R. No.
24434, January 17, 1968; Fores v. Santos, G.R. No. L-24538, May 4, 1968 and De
Borja, et al. v. De Borja, et al., L-14951, August 31, 1961. A cursory reading of the
text of the above-cited cases will reveal that what is involved therein is the
attachment for purposes of execution of theinterest of an heir (to answer for claims
against such heir) in the estate of the decedent which is allowed by the Rules; and
not the attachment of the estate itself nor any property therein for the satisfaction of
a claim against the decedent:
 Sec. 7. Attachment of real and personal property; recording thereof. -
Properties shall be attached by the officer executing the order in the
following manner:

xxx xxxxxx

(f) The interest of the party against whom attachment is issued in

property belonging to the estate of the decedent, whether as heir, legatee
or devisee, by serving the executor or administrator or other personal
representative of the decedent with a copy of the order and notice that
said interest is attached, ... . (Rule 57, Rules of Court)

While the judgment in Civil Case No. 6628 has become final and executory,
execution is not the proper remedy to enforce payment thereof. The ordinary
procedure by which to settle claims of indebtedness against the estate of a deceased
person, ..., is for the claimant to present a claim before the probate court so that said
court may order the administrator to pay the amount thereof (Domingo v. Garlitos,
L-18994, June 29, 1963). This was the procedure correctly chosen by petitioner. In
Aldamiz v. Judge of the Court of First Instance of Mindoro, L-2360, December 29,
1949, We held:

... a writ of execution is not the proper procedure allowed by the Rules
of Court for the payment of debts and expenses of administration. The
proper procedure is for the court to order the sale of personal estate or
the sale or mortgage of real property of the deceased and all debts or
expenses of administration should be paid out of the proceeds of the
sale or mortgage. The order for the sale or mortgage should be issued
upon motion of the administrator and with the written notice to all the
heirs, legatees and devisees residing in the Philippines, according to
Rule 89, Section 3, and Rule 90, Section 2. And when sale or mortgage
of real estate is to be made, the regulations contained in Rule 90,
Section 7, should be complied with.

xxx xxxxxx

And in the case of Domingo v. Garlitos, p. 446, supra:

The legal basis for such a procedure is the fact that in the testate or
intestate proceedings to settle the estate of a deceased person, the
properties belonging to the estate are under the jurisdiction of the
Court and such jurisdiction continues until said properties have been
distributed among the heirs entitled thereto. During the pendency of
the proceedings all the estate is in custodia legis and the proper
procedure is not to allow the sheriff, in case of a court judgment, to
seize the properties but to ask the court for an order to require the
administrator to pay the amount due from the estate and required to
be paid.
Nevertheless, while We hold that the judgment credit should be admitted as a claim
against the estate of C. N. Hodges, the question of whether an order to direct
payment thereof is compellable by mandamus is doubtful. At the time the second
motion for payment was filed by petitioner, respondent judge's hands were "tied"
by an existing writ of preliminary injunction issued by Us in G.R. Nos. L-27860 and
L-27896 (PCIB v. Blanco) restraining him from hearing Special Proceedings Nos.
1307 (Testate Estate of Linnie Jane Hodges) and No. 1672 (Testate Estate of C. N.
Hodges where the motion to direct payment was filed). While this writ was clarified
by a subsequent resolution issued on October 4,1967 to the effect that respondent
judge is not restrained from approving final deeds of sale executed by the
administrator PCIB covering properties of the estate and from acting on such other
routinary administration matters for the gathering and preservation of the estate, it
is clear that an order to direct payment is not embraced under the clarificatory
resolution. Even if petitioners' judgment credit allowed as a claim against the estate.
immediate payment thereof by the administrator of the estate, is not a matter of
right. A judgment against the executor or administrator shall be that he pay, in due
course of administrator, the amount ascertained to be due, and it shall not create a
lien upon the property of the estate, or give the judgment creditor any priority in
payment (Sec. 13, Rule 86, Revised Rules). The time for paying debts (and legacies)
is to be fixed by the probate court having jurisdiction over the estate of the deceased
(Sec. 15, Rule 18). In the absence of any showing that respondent judge who is
taking cognizance of the estate proceedings had already allowed the administrator
to dispose of the estate and to pay the debts and legacies of the deceased, a writ of
mandamus will not issue to compel him to order payment of petitioner's claim.

It is essential to the issuance of the writ of mandamus that the (plaintiffs) should
have a clear legal right to the thing demanded and it must be the imperative duty of
the defendant to perform the act required (Province of Pangasinan v. Reparations
Commission, 80 SCRA 376).

ACCORDINGLY, the petition for the writ of mandamus is DISMISSED for lack of
merit.

SO ORDERED.

G.R. No. 121597 June 29, 2001

PHILIPPINE NATIONAL BANK, petitioner,

vs.
HON. COURT OF APPEALS, ALLAN M. CHUA as Special Administrator of the
Intestate Estate of the late ANTONIO M. CHUA and Mrs. ASUNCION M.
CHUA, respondents.

QUISUMBING, J.:

This petition assails the decision1 of the Court of Appeals dated July 25, 1995 in CA-
G.R. CV No. 36546, affirming the decision dated September 4, 1991 of the Regional
Trial Court of Balayan, Batangas, Branch 10 in Civil Case No. 1988.
The facts, as found by the trial court and by the Court of Appeals, are not disputed.

The spouses Antonio M. Chua and Asuncion M. Chua were the owners of a parcel of
land covered by Transfer Certificate of Title No. P-142 and registered in their names.
Upon Antonio’s death, the probate court appointed his son, private respondent Allan
M. Chua, special administrator of Antonio’s intestate estate. The court also
authorized Allan to obtain a loan accommodation of five hundred fifty thousand
(P550,000.00) pesos from petitioner Philippine National Bank to be secured by a
real estate mortgage over the above-mentioned parcel of land.

On June 29, 1989, Allan obtained a loan of P450,000.00 from petitioner PNB
evidenced by a promissory note, payable on June 29, 1990, with interest at 18.8
percent per annum. To secure the loan, Allan executed a deed of real estate
mortgage on the aforesaid parcel of land.

On December 27, 1990, for failure to pay the loan in full, the bank extrajudicially
foreclosed the real estate mortgage, through the Ex-Officio Sheriff, who conducted a
public auction of the mortgaged property pursuant to the authority provided for in
the deed of real estate mortgage. During the auction, PNB was the highest bidder
with a bid price P306,360.00. Since PNB’s total claim as of the date of the auction
sale was P679,185.63, the loan had a payable balance of P372,825.63. To claim this
deficiency, PNB instituted an action with the RTC, Balayan, Batangas, Branch 10,
docketed as Civil Case No. 1988, against both Mrs. Asuncion M. Chua and Allan Chua
in his capacity as special administrator of his father’s intestate estate.

Despite summons duly served, private respondents did not answer the complaint.
The trial court declared them in default and received evidence ex parte.

On September 4, 1991, the RTC rendered its decision, ordering the dismissal of
PNB’s complaint.2

On appeal, the Court of Appeals affirmed the RTC decision by dismissing PNB’s
appeal for lack of merit.3

Hence, the present petition for review on certiorari under Rule 45 of the Rules of
Court. Petitioner cites two grounds:

THE CA ERRED IN HOLDING THAT PNB CAN NO LONGER PURSUE ITS

DEFICIENCY CLAIM AGAINST THE ESTATE OF DECEASED ANTONIO M.
CHUA, HAVING ELECTED ONE OF ITS ALTERNATIVE RIGHT PURSUANT TO
SECTION 7 RULE 86 OF THE RULES OF COURT DESPITE A SPECIAL
ENACTMENT (ACT. NO. 3135) COVERING EXTRAJUDICIAL FORECLOSURE
SALE ALLOWING RECOURSE FOR A DEFICIENCY CLAIM AS SUPPORTED BY
CONTEMPORARY JURISPRUDENCE.

II
 THE CA ERRED IN HOLDING THAT ALLAN M. CHUA, AS SPECIAL
ADMINISTRATOR OF THE INTESTATE ESTATE OF HIS DECEASED FATHER
ANTONIO M. CHUA ON ONE HAND, AND HIM AND HIS MOTHER ASUNCION
CHUA AS HEIRS ON THE OTHER HAND ARE NO LONGER LIABLE FOR THE
DEBTS OF THE ESTATE.4

The primary issue posed before us is whether or not it was error for the Court of
Appeals to rule that petitioner may no longer pursue by civil action the recovery of
the balance of indebtedness after having foreclosed the property securing the same.
A resolution of this issue will also resolve the secondary issue concerning any
further liability of respondents and of the decedent’s estate.

Petitioner contends that under prevailing jurisprudence, when the proceeds of the
sale are insufficient to pay the debt, the mortgagee has the right to recover the
deficiency from the debtor.5 It also contends that Act 3135, otherwise known as "An
Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to
Real Estate Mortgages," is the law applicable to this case of foreclosure sale and not
Section 7 of Rule 86 of the Revised Rules of Court6 as held by the Court of Appeals.7

Private respondents argue that having chosen the remedy of extrajudicial

foreclosure of the mortgaged property of the deceased, petitioner is precluded from
pursuing its deficiency claim against the estate of Antonio M. Chua. This they say is
pursuant to Section 7, Rule 86 of the Rules of Court, which states that:

Sec. 7. Rule 86. Mortgage debt due from estate. — A creditor holding a claim
against the deceased secured by mortgage or other collateral security, may
abandon the security and prosecute his claim in the manner provided in this
rule, and share in the general distribution of the assets of the estate; or he
may foreclose his mortgage or realize upon his security, by action in court,
making the executor or administrator a party defendant, and if there is a
judgment for a deficiency, after the sale of the mortgaged premises, or the
property pledged, in the foreclosure or other proceeding to realize upon the
security, he may claim his deficiency judgment in the manner provided in the
preceding section; or he may rely upon his mortgage or other security alone
and foreclose the same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a creditor, and shall
receive no share in the distribution of the other assets of the estate; but nothing
herein contained shall prohibit the executor or administrator from redeeming
the property mortgaged or pledged by paying the debt for which it is hold as
security, under the direction of the court if the court shall adjudge it to be for
the interest of the estate that such redemption shall be made.

Pertinent to the issue at bar, according to petitioner, are our decisions he

cited.8 Prudential Bank v. Martinez, 189 SCRA 612, 615 (1990), is particularly cited
by petitioner as precedent for holding that in extrajudicial foreclosure of mortgage,
when the proceeds of the sale are insufficient to pay the debt, the mortgagee has the
right to recover the deficiency from the mortgagor.
However, it must be pointed out that petitioner’s cited cases involve ordinary debts
secured by a mortgage. The case at bar, we must stress, involves a foreclosure of
mortgage arising out of a settlement of estate, wherein the administrator mortgaged
a property belonging to the estate of the decedent, pursuant to an authority given by
the probate court. As the Court of Appeals correctly stated, the Rules of Court on
Special Proceedings comes into play decisively.

To begin with, it is clear from the text of Section 7, Rule 89, that once the deed of
real estate mortgage is recorded in the proper Registry of Deeds, together with the
corresponding court order authorizing the administrator to mortgage the property,
said deed shall be valid as if it has been executed by the deceased himself. Section 7
provides in part:

Sec. 7. Rule 89. Regulations for granting authority to sell, mortgage, or

otherwise encumber estate – The court having jurisdiction of the estate of the
deceased may authorize the executor or administrator to sell personal estate,
or to sell, mortgage, or otherwise encumber real estate, in cases provided by
these rules when it appears necessary or beneficial under the following
regulations:

x xx

(f) There shall be recorded in the registry of deeds of the province in which
the real estate thus sold, mortgaged, or otherwise encumbered is situated, a
certified copy of the order of the court, together with the deed of the executor
or administrator for such real estate, which shall be valid as if the deed had
been executed by the deceased in his lifetime.

In the present case, it is undisputed that the conditions under the aforecited rule
have been complied with. It follows that we must consider Sec. 7 of Rule 86,
appropriately applicable to the controversy at hand.

Case law now holds that this rule grants to the mortgagee three distinct,
independent and mutually exclusive remedies that can be alternatively pursued by
the mortgage creditor for the satisfaction of his credit in case the mortgagor dies,
among them:

(1) to waive the mortgage and claim the entire debt from the estate of the
mortgagor as an ordinary claim;

(2) to foreclose the mortgage judicially and prove any deficiency as an

ordinary claim; and

(3) to rely on the mortgage exclusively, foreclosing the same at any time
before it is barred by prescription without right to file a claim for any
deficiency.9

In Perez v. Philippine National Bank,10 reversing Pasno vs. Ravina,11 we held:

 The ruling in Pasno vs. Ravina not having been reiterated in any other case,
we have carefully reexamined the same, and after mature deliberation have
reached the conclusion that the dissenting opinion is more in conformity with
reason and law. Of the three alternative courses that section 7, Rule 87 (now
Rule 86), offers the mortgage creditor, to wit, (1) to waive the mortgage and
claim the entire debt from the estate of the mortgagor as an ordinary claim;
(2) foreclose the mortgage judicially and prove any deficiency as an ordinary
claim; and (3) to rely on the mortgage exclusively, foreclosing the same at any
time before it is barred by prescription, without right to file a claim for any
deficiency, the majority opinion in Pasno vs. Ravina, in requiring a judicial
foreclosure, virtually wipes out the third alternative conceded by the Rules to
the mortgage creditor, and which would precisely include extra-judicial
foreclosures by contrast with the second alternative.

The plain result of adopting the last mode of foreclosure is that the creditor waives
his right to recover any deficiency from the estate.12 Following the Perez ruling that
the third mode includes extrajudicial foreclosure sales, the result of extrajudicial
foreclosure is that the creditor waives any further deficiency claim. The dissent
in Pasno, as adopted in Perez, supports this conclusion, thus:

When account is further taken of the fact that a creditor who elects to foreclose
by extrajudicial sale waives all right to recover against the estate of the
deceased debtor for any deficiency remaining unpaid after the sale it will be
readily seen that the decision in this case (referring to the majority
opinion) will impose a burden upon the estates of deceased persons who
have mortgaged real property for the security of debts, without any
compensatory advantage.

Clearly, in our view, petitioner herein has chosen the mortgage-creditor’s option of
extrajudicially foreclosing the mortgaged property of the Chuas. This choice now
bars any subsequent deficiency claim against the estate of the deceased, Antonio M.
Chua. Petitioner may no longer avail of the complaint for the recovery of the balance
of indebtedness against said estate, after petitioner foreclosed the property securing
the mortgage in its favor. It follows that in this case no further liability remains on
the part of respondents and the late Antonio M. Chua’s estate.

WHEREFORE, finding no reversible error committed by respondent Court of

Appeals, the instant petition is hereby DENIED. The assailed decision of the Court of
Appeals in CA-G.R. CV No. 36546 is AFFIRMED. Costs against petitioner.1âwphi1.nêt

SO ORDERED.

[G.R. No. 48115. October 12, 1942.]

Intestate estate of the deceased Florentino San Gil. JOSEFA R.

OPPUS, Petitioner-Appellant, v. BONIFACIO SAN GIL, ETC., Oppositor-Appellee.

Marcelino Lontok for Appellant.

 Bonifacio Sangil in his own behalf.

SYLLABUS

1. EXECUTORS AND ADMINISTRATORS; CIVIL ACTION AGAINST ADMINISTRATOR

FOR THE RECOVERY OF FURNITURE; EXECUTION OF JUDGMENT. — Plaintiff, in a
civil action, sued defendant, in the latter’s capacity as administrator of the intestate
of a deceased person, to recover certain furniture. Judgment was rendered ordering
defendant to deliver the possession of said furniture to plaintiff. As the judgment
remained unsatisfied, plaintiff moved in the intestate proceeding that the
administrator be ordered to make such delivery. Held: That the probate court
properly denied the motion, first, because it was established in said civil case that
the furniture in question belongs to the plaintiff, who bought it from the deceased,
and, secondly, because the administrator having been sued as such in the ordinary
court and judgment having been rendered there against him, there is no legal
impediment to the execution of said judgment by order of the court that rendered
it.

2. ID.; ID.; ID.; PROPERTY NOT "IN CUSTODIA LEGIS." — There is no merit in
plaintiff’s contention that she has to apply to the probate court for the execution of
said judgment on the theory that the property in question is in custodia legis. The
judgment in question is not one for a sum of money which has to be satisfied by
levying execution on property belonging to the estate and therefore in custodia
legis. It is a judgment for the manual delivery and possession of specific articles of
personal property, the action for which survived by express provision of law "and
may be commenced and prosecuted by or against the executor or administrator."
(Section 703, Code of Civil Procedure; section 1, Rule 88, Rules of Court.) On the one
hand, the prosecution of an action against an executor or administrator which the
law allows regarding the possession of specific articles, necessarily includes the
execution of the judgment that may be entered in said action. On the other hand,
once the court determines in such action that the property in litigation belongs to
the plaintiff and not to the estate of the deceased, it cannot be maintained that such
property is in custodia legis, it not forming part of the estate of the deceased.

DECISION

OZAETA, J.:

In civil case No. 3498 of the Court of First Instance of Tayabas, the herein appellant
Josefa R. Oppus sued the herein appellee Bonifacio San Gil in his capacity as
administrator of the intestate estate of the deceased Florentino San Gil for the
possession, among others, of the following personalities: 24 beds, 1 "Schkler" piano,
12 chairs, 8 small tables, 2 iceboxes, 1 phonograph, 2 long dining tables, and 1 big
mirror. On November 1, 1933, the court in said case rendered judgment ordering
the defendant to deliver the possession of said furniture to the plaintiff. For reasons
that do not appear in the record, that judgment has not been satisfied. On October 6,
1939, Josefa R. Oppus presented a motion in the above-entitled intestate proceeding
of Florentino San Gil, asking the court to order the administrator Bonifacio San Gil to
deliver to her the furniture above mentioned. The probate court denied said motion
on the grounds (1) that the furniture in question does not belong to the estate of the
deceased Florentino San Gil and (2) that in any event the execution of the judgment
in civil case No. 3498 should be applied for in said case. We are now asked to review
and reverse that order.

The first ground stated by the probate court is correct because it was established in
said civil case No. 3498 that the furniture in question belongs to the appellant Josefa
R. Oppus, who bought it from the deceased Florentino San Gil. The second ground is
also well founded because the administrator Bonifacio San Gil having been sued as
such in the ordinary court and judgment having been rendered there against him,
we find no legal impediment to the execution of said judgment by order of the court
that rendered it. Appellant’s contention that she has to apply to the probate court
for the execution of said judgment on the theory that the property in question is in
custodia legis, is untenable. The judgment in question is not one for a sum of money
which has to be satisfied by levying execution on property belonging to the estate
and therefore in custodia legis. It is a judgment for the manual delivery and
possession of specific articles of personal property, the action for which survives by
express provision of law "and may be commenced and prosecuted by or against the
executor or administrator." (Section 703, Code of Civil Procedure; section 1, Rule 88,
Rules of Court.) On the one hand, the prosecution of an action against an executor or
administrator which the law allows regarding the possession of specific articles,
necessarily includes the execution of the judgment that may be entered in said
action. On the other hand, once the court determines in such action that the
property in litigation belongs to the plaintiff and not to the estate of the deceased, it
cannot be maintained that such property is in custodia legis, it not forming part of
the estate of the deceased. Hence appellant’s motion herein was not in order and
was properly denied.

We might add that perhaps such motion in the probate court was resorted to
instead of a petition for execution in the ordinary court that rendered the judgment,
because more than five years had elapsed since it became final in December, 1933.
Suffice it to say, however, that what the law does not permit to be done directly
cannot be done indirectly.

Lastly, we observe from the record (p. 37, B. of E.) that twice did appellant procure
writs of execution in said case No. 3498 — first in February, 1934, and again in
September, 1935. We cannot understand why the judgment in question has
remained unsatisfied.

The order appealed from is affirmed; but we refrain from awarding costs to the
appellee because we think his obstinate refusal to deliver the furniture in question
to the appellant notwithstanding the judgment of a competent tribunal is
unjustifiable and unworthy of a law-abiding citizen. So ordered.

[G.R. No. L-3236. March 27, 1907. ]

SEBASTIAN ABIERA, administrator of the estate of JUAN ABIERA,

deceased, Plaintiff-Appellee, v. MIGUEL ORIN, Defendant-Appellant.

W.A. Kincaid, for Appellant.

Sebastian Abiera, in his own behalf.

SYLLABUS

1. ESTATES; ADMINISTRATORS; CONTRACTS. — The true parties interested, in the

case at bar, in the obligation contracted by the defendant, are the children of A, and
not the latter, for the reason that the obligation was executed in their favor and not
in favor of A. The plaintiff, as administrator of the estate of the deceased A, has,
therefore, no right to ask for the compliance with the said obligation. As such
administrator he had only the right to institute such actions as pertain to the estate
he is administering, and no action, dealing with obligations contracted in favor of
third persons, or others from whom he does not derive such right, can be brought by
him as such administrator.

2. ID.; PARENT AND CHILD. — The right attached to parental authority was
extinguished with the death of A, and he could not transfer, as administrator, such
right to the administrator of his estate. This was an exclusively personal right that
could not survive the person who had such right.

3. CIVIL PROCEDURE; ACTION; EXCEPTION. — Because of the foregoing

considerations the plaintiff had no right of action, and the complaint should have
been dismissed. An exception based on the lack of a right of action can be submitted
during any stage of the case, as provided in section 93 of the Code of Civil Procedure.

DECISION

MAPA, J. :

There was no new trial asked for in this case and therefore this court can not review
the proofs presented in the same. The judgment of the lower court was rendered in
favor of the plaintiff, as special administrator of the estate of Juan Abiera, deceased,
who died intestate, which judgment is in accord with the prayer of the complaint
herein and orders the defendant to pay the sum of 1,000 pesos, as claimed in said
complaint.

The court below states, among other things, in its judgment rendered herein, the
following:jgc:chanrobles.com.ph

"Vicenta Cacao, Mariano Cacao, and Petra Cacao were brothers and sisters. Vicenta
Cacao married Miguel Orin and after her said marriage left no descendants or
ascendants, and Miguel Orin, Mariano Cacao, and Juan Abiera in 1898 entered into
an agreement in writing covering the disposition of the properties and animals had
and acquired during the marriage of Miguel Orin and Vicenta Cacao; Mariano Cacao
and Juan Abiera as representatives of their children, who are the only heirs as well
as the natural nephews of the deceased woman Cacao.

"Now, the plaintiff," continues the judgment, "has filed this complaint as special
administrator of his deceased father, Juan Abiera, alleging that the defendant has
not complied with the said contract and agreement and prays the court to compel
the compliance of the defendant therewith."cralaw virtua1aw library

The tenor of this contract, according to the judgment referred to, is as

follows:jgc:chanrobles.com.ph

"We, having knowledge and information of the inventory of the properties acquired
during the married state and life of Miguel Orin and the said Vicenta Cacao, by our
contract have agreed, that Miguel Orin, The widower, obligates himself to deliver to
his brothers-in-law, as guardians and fathers of the heirs of Petra Cacao, the value of
one thousand pesos to each of them. The period within which to comply with this
contract is until August 15, next; this is the just amount of our inheritance."cralaw
virtua1aw library

From these statements of the judgment it is clearly seen that the deceased, Juan
Abiera, entered into a contract, the compliance of which is prayed for in the
complaint herein, not as a personal right, but in the name and representation of his
children. There can be no doubts as to this. The contract deals with the matter of the
extrajudicial partition of the estate left by Vicenta Cacao whose heirs were according
to the judgment, not Juan Abiera but his children. Abiera, therefore, had to act by
force of law in the representation of these children in treating in such contract as to
the manner in which the said estate was to be divided. It was for this reason, says
the court below in emphatic terms, that Juan Abiera became a party to the said
contract as the representative of his children. It was for this reason also that there is
expressed in the same contract the fact that Miguel Orin obligated himself to pay
over 1,000 pesos to Juan Abiera as guardian and farther of the heirs of Petra Cacao.
This Petra Cacao was the deceased wife of Juan Abiera and the sister of Vicenta
Cacao, whose estate is dealt with herein and which estate came to be inherited and
participated in, through legitimate succession by the children of Juan Abiera in
representation of their mother, the said Petra Cacao.

Therefore, the true interested parties in the obligation contracted by the defendant
herein, Miguel Orin, are the children of Juan Abiera, and not the latter, for the simple
reason that the obligation was executed in their favor and not in favor of said
Abiera. This being the fact, it is evident that the plaintiff in his office as
administrator of the deceased Juan Abiera has no right to ask for the compliance
with the said obligation. As such administrator he has only the right to institute such
actions as correspond and pertain to the estate which he is administering, and no
other action dealing with contracts and obligations contracted in favor of third
persons, or others from whom he does not derive such right, can be brought as such
administrator.

On the other hand it is not necessary, it being too trivial, to refer to the right of Juan
Abiera to represent his children as father or guardian of the same, and that he has
not transferred nor could he transfer to the administrator of his estate such right
from the mere fact that he was such administrator. As has been stated, the said right
attached to parental authority or guardianship was extinguished with the death of
Abiera, together with the parental right or the said guardianship — this in fact and
law. This was an exclusively personal right that could not survive the person who
had such right.

Consequently by reason of the considerations expressed above the court below

incurred error in taking into consideration the propriety of the complaint herein.
This could not have been done legally, the plaintiff not having the right of action and
was without such right of action in the suit brought by him, and this is the basis of
the exception taken by the appellant and now before this court. It is true that this
exception on this point was not brought forward in the Court of First Instance, but it
is also true that the exception based on the lack of right of action can be submitted
during any stage or state of the case, as provided in section 93 1 of the Code of Civil
Procedure.

Wherefore the judgment appealed from is reversed and the complaint dismissed,
without special mention as to the costs in both instances. After the expiration of
twenty days from the notification of this decision let judgment be entered in
accordance herewith, and ten days thereafter let the case be remanded to the court
from whence it came for proper action. So ordered.

[G.R. No. 1027. May 19, 1903. ]

RAMON DEL ROSARIO, Plaintiff-Appellee, v. CLEMENTE DEL

ROSARIO, Defendant-Appellant.

Lucas Gonzalez for Appellant.

Rodriguez &Foz for Appellee.

SYLLABUS
 1. WILLS; CONSTRUCTION. — In the interpretation and construction of
testamentary provisions the intention of the testator controls.

2. ID.; ID.; DESCRIPTION OF LEGATEES. — Where legatees are pointed out by name
in the will the fact that they are referred to as the natural sons of a third person does
not make the legacy conditional upon proof of such relationship but is descriptive
merely.

3. ID.; ID.; ACCRETION. — A legacy of a certain sum to two nephews in equal shares
is payable in its entirety to the survivor of them in case one dies before the testator.

4. ID.; ID.; LEGACIES. — The reservation of property in a will to the children of the
legatee thereof in case of the latter’s death must be regarded as a legacy if made so
by express words; otherwise the children of the legatee take by inheritance.

5. ID.; ID.; PAYMENT OF LEGACIES. — Where the will authorizes the executor to pay
legacies, expressly or by natural inference, action will lie by the legatee against the
executor to compel allowance and payment thereof.

6. ID.; ID.; ID. — In an action to compel payment of legacies the defense that an
inventory is being formed or that creditors have not been paid must be set up in the
answer in order to be availed of.

7. ID.; ID.; PARTITION OF ESTATE. — An executor who is also an heir is not qualified
to make partition of the estate, and a legatee who seeks the payment of a legacy
involving a partition must sue all persons interested in the estate.

8. ID.; ID. — Where the executor of an estate dies pending the determination of an
appeal from a judgment rendered against him and in favor of a legatee, and the
latter succeeding as executor dismisses the appeal, an order may be granted
permitting any interested party to prosecute the appeal.

9. CIVIL PROCEDURE; ASSIGNMENT OF ERROR ON APPEAL. — Where the appellant

places his assignment of errors in the bill of exceptions instead of in his brief, and no
objection is made at the opportune time, the judgment will not be affirmed upon the
ground of this nonprejudicial error.

DECISION

WILLARD, J. :

I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a last will, the
eighth, ninth, eleventh, and eighteenth clauses of which are as
follows:jgc:chanrobles.com.ph
"Eighth. The testator declares that the 5,000 pesos which he brought to his marriage
he hereby bequeathes to his nephews Enrique Gloria y Rosario and Ramon del
Rosario, natural children of his brother Clemente del Rosario, notwithstanding the
fact that they purport to be the issue of the marriage of Escolastico Gloria and
Rosendo del Rosario, successively.

"Ninth. The testator declares that the said sum of 5,000 pesos is to be divided, 3,000
pesos for the first named and 2,000 pesos for the second named, the delivery of the
said sums to be effected by the wife of the testator, provided that these young men
behave themselves as they have done up to the present time, and do not cease to
study until taking the degree of bachelor of arts, and then take a business course, if
their health will permit, their support to be paid out of the testamentary estate and
they to live in the house of the widow.

"Eleventh. The testator declares that in case the said young men should be still
engaged in study at the time of the death of the testator’s wife, they shall continue to
be supported at the expense of the testamentary estate, without deducting such
expenses from their legacies, if they should desire to continue the same studies.

"Eighteenth. The testator further states that although his wife is at the present time
fifty-five years of age, and consequently is not likely to marry again, as she herself
says, nevertheless it is possible that the opposite of what she asserts might occur,
and, if so, then it is to be regarded as sufficient reason to authorize the young men
Ramon and Enrique, so often referred to, to separate from their aunt, in which event
they are to be supported by the testamentary estate on a small allowance of twenty-
five pesos per month, provided that they continue their studies or should be in poor
health, this without in any respect reducing the amount of their shares."cralaw
virtua1aw library

Don Ramon del Rosario, one of the persons mentioned in these clauses, brought this
action in 1902 against Don Clemente del Rosario, the then executor, asking, among
other things, that the said executor pay him an allowance from the death of the
widow of the testator at the rate of 75 pesos a month, and that the executor allow
him to live in the house in which the widow was living at that time.

The widow of the testator, Doña Honorata Valdez, died on July 7, 1900.

The court below ordered judgment in respect to this allowance, and the right to live
in the house as prayed for by the plaintiff. In this we think that the court erred.

While by the eighth clause the support of the plaintiff and of Don Enrique Gloria is
charged against the estate, yet the eleventh clause makes it plain that this
unconditional right was to last only during the lifetime of the widow. After her death
the right to this allowance is made to depend on the continuance of their studies.
That this is the correct construction of the will is made more plain by the eighteenth
clause above quoted. In the case of their separation from their aunt by her
remarriage, they were entitled to the specified allowance of 25 pesos a month only
on condition that they were pursuing, their studies or were in poor health.

The court did not find that the plaintiff was still pursuing his studies. On the
contrary, he found that the plaintiff had fulfilled the condition by obtaining the
degree of bachelor of arts in 1898.

The right to live in the house of the widow terminated at her death.

II. The seventh clause of the will of Don Nicolas is as follows:jgc:chanrobles.com.ph

"Seventh. The testator states that in the present condition of his affairs he has
acquired, during his married life, some tens of thousands of dollars, of which one-
half belongs to his wife as her share of the profits of the conjugal partnership, and
the other half belongs to him as his share of such profits; but, in view of the
agreement entered into between the two spouses, the property will not be
partitioned, and upon the death of the testator all the said property will pass to his
wife, in order that she may enjoy the revenue therefrom during her lifetime, but
without authority to convey any of such property, inasmuch as she, being grateful
for the benefit resulting, to her, binds herself in turn to deliver said property at her
death to the testator’s brothers, Don Clemente del Rosario and Don Rosendo del
Rosario, and his sister, Doña Luisa del Rosario, who shall enjoy the revenue from the
said property during their respective lives, and shall then, in turn, transmit the same
to their male children, both those born in wedlock and natural children who may be
known."cralaw virtua1aw library

This was later modified by a codicil, as follows:jgc:chanrobles.com.ph

"That in the seventh clause of said testament he desires and wills that in the
distribution of his property and that of his wife among the male children of his
brothers, Clemente and Rosendo del Rosario, and those of his sister, Luisa del
Rosario, in such distribution his nephews Enrique Gloria and Ramon del Rosario
must be understood to be included, in addition to the legacies mentioned in his said
testament."cralaw virtua1aw library

The thirteenth clause of his will was as follows:jgc:chanrobles.com.ph

"The testator declares that in case Doña Luisa del Rosario should die before or after
the wife of the testator, then the legacy due her by virtue of this will shall not pass in
its entirety to her male children, except as to the sum of 1,000 pesos, the remainder
to pass to Don Enrique Gloria Rosario and Don Ramon del Rosario, natural sons of
Don Clemente del Rosario, as already stated."cralaw virtua1aw library

This was modified by the codicil as follows:jgc:chanrobles.com.ph

"That in the thirteenth clause the testator provided that upon the death of his sister,
Luisa del Rosario, her male children were to inherit from her up to the sum of 1,000
pesos, and this he rectifies, for better understanding, to the effect that it is his will
that the remainder of all her portion should be divided into equal parts, one-third to
go to his brother Don Clemente del Rosario and the other two thirds to be divided
equally among his said nephews, Enrique Gloria and Ramon del Rosario."cralaw
virtua1aw library

Doña Honorata Valdez made her will three days after that of her husband. The
seventh clause is as follows:jgc:chanrobles.com.ph

"The testatrix declares that she institutes her beloved husband, Don Nicolas del
Rosario y Alejo, as her heir to all the property which she may have at her death, and
in the unexpected case of the death of her said husband then she institutes as heirs
her brothers-in-law, Don Rosendo and Don Clemente del Rosario y Alejo, and her
sister-in-law, Doña Luisa del Rosario, who shall enjoy the usufruct during their
lifetime of all the revenue of the said property. Upon the death of any of them, then
the property shall pass to the male children of her said brothers-in-law and sister-
in-law, the issue of lawful marriage or natural children who may be known; but
upon the death of her sister-in-law, Doña Luisa, then her share shall not pass in its
entirety to her male children, except the sum of 1,000 pesos, and the remainder
shall be paid to her nephews, Don Enrique Gloria and Don Ramon del Rosario,
natural children of her brother-in-law Don Clemente del Rosario."cralaw virtua1aw
library

Doña Luisa died one year after Don Nicolas and two years before the death of Doña
Honorata, which, as has been said, occurred on July 7, 1900.

Don Enrique Gloria died on July 6, 1900.

Don Ramon del Rosario claims in this action that he is now entitled, by virtue of both
wills, to a certain part of the share of the estates left to said Doña Luisa during her
life, and he asks that the defendant be directed to render accounts and to proceed to
the partition of the said estates. The controversy between the parties upon this
branch of the case is as follows:chanrob1es virtual 1aw library

The defendant claims that the plaintiff is entitled to nothing under the wills, because
the gift to him was conditional, the condition being that he should be the natural son
of Don Clemente, recognized by the latter as such in one of the ways pointed out by
the Civil Code; that he can not prove such recognition, the parol evidence presented
at the trial being prohibited by said Code, and that he has therefore not complied
with the condition.

The plaintiff claims that such evidence was proper, that both wills state that Don
Ramon del Rosario is the natural son of Don Clemente, and that in any event the
bequests are made to the plaintiff by name.

The court below, holding the parol evidence immaterial, ordered judgment for the
plaintiff as prayed for.
(1) So far as the disposition of that part of the inheritance left in the aunt’s will to
Doña Luisa for life is concerned, the question is free from doubt. It is distinctly
declared that Ramon del Rosario and Enrique Gloria shall take certain parts of it
after 1,000 pesos have been deducted. They are pointed out by name as the legatees.
It is true that they are called the natural sons of Don Clemente. But this is merely a
further description of persons already w ell identified, and, if false, can be rejected in
accordance with the provision of article 773 of the Civil de, which by article 789 is
applicable to legatees.

(2) The ninth clause of the will of Doña Honorata is as follows:jgc:chanrobles.com.ph

"The testatrix bequeaths the sum of 3,000 pesos to her nephews Enrique Gloria and
Ramon del Rosario in equal parts — that is, 1,500 pesos each."cralaw virtua1aw
library

The plaintiff was entitled to one-half of this legacy in his own right. This has been
paid to him. Don Enrique Gloria died before the testatrix. By the provisions of
articles 982 and 983 of the Civil Code the right of accretion exists as to the other half
in favor of the plaintiff and he is entitled to have it paid to him.

(3) The will of Doña Honorata plainly declares that, on the death of any one of the
life tenants, the male children of such tenant shall inherit, and in respect to Doña
Luisa it is expressly declared that this shall take place whether she dies before or
after the testatrix. The derecho de acrecer did not therefore exist in favor of the
other two life tenants, Don Clemente and Don Rosendo. "En la sucesiontestada es ley
preferente la voluntad del testador, de modo que esteprohibiendoexpresamente el
derecho de acrecer, nombrandosustitutos, o marcando el destino especial de
cadaporcionvacante, excluye la aplicacion de los articulos que vamos a examinar."
(Manresa, Comentarios al Codigo Civil, p. 276.)

This right does, however, exist in the share of Doña Luisa in favor of the plaintiff, for
the reasons stated in connection with the legacy of 3,000 pesos.

(4) We have passed upon the rights of the plaintiff to the share of Doña Luisa under
the will of Doña Honorata, because the interest is expressly left to him (enconcepto
de legado) as a legacy. This is controlling. (Manresa, 315.)

These or equivalent words are wanting in the will of Don Nicolas. Applying article
668 of the Civil Code, we must hold that any interest which the plaintiff may have
taken in the share of Doña Luisa under the will of Don Nicolas he took as an heir and
not as a legatee.

The distinction between the two is constantly maintained throughout the Code, and
their rights and obligations differ materially. (Arts. 660, 668, 768, 790, 858, 891,
1003.)
(5) The legatee can demand his legacy from the heir or from the executor, when the
latter is authorized to give it. (Art. 885.) The powers given to the executors by the
will of Doña Honorata are contained in the fourteenth clause, which is as
follows:jgc:chanrobles.com.ph

"The testatrix appoints as the executors of her will, in the first place, her beloved
husband, Nicolas del Rosario y Alejo, in the second place her brother-in-law
Clemente del Rosario, in the third place her brother-in-law Rosendo del Rosario, in
the fourth place Don Ramon del Rosario when he shall attain his majority, all of
them without bond and free from the obligation of terminating the administration
within the legal term. At her death they shall take possession of all such goods and
things as may be her property, and are hereby authorized fully and as required by
law to prepare an inventory of said property, and to effect the division and partition
of the estate among her heirs. She also authorizes them to execute and sign deeds of
partition, sales with a resolutory condition, cancellations, receipts, acquittances, and
such other documents as may be necessary."cralaw virtua1aw library

The twenty-first clause of the will of Don Nicolas is substantially the same Each will
prohibited any judicial intervention in the settlement of the estates.

The clause in the will of Doña Honorata which is a copy of that in the will of Don
Nicolas is as follows:jgc:chanrobles.com.ph

"The testatrix declares that she expressly prohibits any judicial intervention in this
her will, although minors, absentees, or persons under disability be interested
therein, as it is her wish and will that all the proceedings be conducted
extrajudicially, and in case a family council should be necessary, she designates the
persons who, in accordance with the provisions of the Civil Code now in force,
should form such council, or else leaves their appointment to the discretion of her
executors."cralaw virtua1aw library

If the executor was not authorized to pay these legacies, the heirs must pay them.

The life tenants and the heirs who take the remainder under these wills are
numerous. If they did not pay the legacies and did not agree upon an administrator,
judicial intervention would be necessary, the very thing which the testators had
expressly prohibited. The important power of making the partition was attempted
to be given to the executors. In view of these considerations and a study of the
whole will, we hold that the executors are given power to pay the legacies.

The action, therefore, was properly directed against the executor so far as it related
to the allowance and the legacy of 3,000 pesos. As to these legacies, the action may
be supported also under article 902,2, which allows executors to pay money
legacies.

It was also properly directed against him, so far as it related to the share to which
the plaintiff is entitled under the will of Doña Honorata in the portion left to Doña
Luisa for life.

The provisions of articles 1025-1027 are no obstacle to this suit. That an inventory
is being formed. or that the creditors have not been paid, is a matter of defense
which should have been set up in the answer.

It was not properly directed against him in so far as it related to the similar share
left to him by the will of Don Nicolas. He took that as heir and not as legatee, and the
heir can maintain no such action against the executor.

The fact that the plaintiff under the will of Doña Honorata is a legatee of an aliquot
part of the estate, having become entitled to receive one-third of it on the death of
Doña Luisa, does not prevent him from maintaining this action against the executor.
Though such a legatee closely resembles an heir, yet, like all other legatees, he must
seek his share from the heir or executor. (6 Manresa, 561.)

(6) While in this action he has a right to have his interest as legatee declared, yet it
can not be delivered to him without a partition of the estate.

It remains to be considered whether the executor has power to make the partition
such power is expressly given by the will. This provision is, however, void under the
terms of article 1057 of the Civil Code, which is as follows

"The testator may, be an act inter vivos or causa mortis, intrust the mere power of
making the division after his death to any person who is not one of the coheirs.

"The provisions of this and the foregoing articles shall be observed even should
there be a minor or a person subject to guardianship among the coheirs; but the
trustee must in such case make an inventory of the property of the inheritance,
citing the coheirs, the creditors, and the legatees."cralaw virtua1aw library

Don Clemente, the executor, against whom the action was directed, was not only an
heir as a life tenant but also in fee after the death of Don Rosendo if the latter died
without issue. Upon the death of the widow, Doña Luisa then being dead, it became
his duty to divide the estate into three parts, or at least to set off the third, which
was to pass to the plaintiff by the death of the widow and Doña Luisa. In this
partition he was directly interested, for, with his brother Don Rosendo, he had a life
interest in the part of the estate not set off to the plaintiff Article 1057 prohibited all
heir from being contador for this very reason, namely, that the partition should be
made impartially.

Although the executor has no power to make the partition, the heirs can do so. (Arts.
1058-1060, Civil Code.)

The plaintiff is not bound to remain a coowner with the other heirs. Being a legatee
of an aliquot part, he has the same right to seek a partition that an heir has. (7
Manresa, 578; art. 1051, Codigo Civil.) But in so seeking it he must make parties to
his suit all persons interested in the estate (7 Manresa, 577). This he has not done in
this suit, and he consequently is not entitled to the partition ordered by the court
below.

(7) We have held that the only thing that can be decided in this case is the rights of
the plaintiff as legatee.

The court below ordered the executor to render accounts of his administration of
both estates.

As to the estate of Don Nicolas, the only thing here in question is the right to the
allowance. As we hold that the plaintiff is not entitled to it, he is not entitled to any
statement of accounts as such pretended legatee.

As to the estate of Doña Honorata, he is entitled to be paid a legacy of 1,500 pesos.

Article 907 requires the executor to render accounts to the heir, not to the legatee;
and although by article 789 all of the provisions of Chapter II (in which both articles
are found) relating to heirs are made applicable to legatees, we can not hold that
this requires an executor to submit his accounts to one who has no interest in the
estate except to a money legacy when there is no suggestion that it will not be paid
when the right to it is established.

In respect to the share of Doña Luisa, there is reason for saying that a legatee of an
aliquot part is entitled to an accounting. But, inasmuch as in this case there can be
no final determination of the rights of the parties interested in the estate, because
they are not all parties to this suit, the executor should not in this suit be ordered to
submit his accounts.

(8) The plaintiff in his complaint has limited himself to claiming the allowance, his
rights to the share of Doña Luisa, and the legacies left to him.

The question as to whether he would be entitled to any part of the share of Don
Clemente upon the latter’s death, under the seventh clause of the two wills, was not
presented by the complaint nor passed upon by the court and is not before us for
decision.

(9) The result of the foregoing considerations is:chanrob1es virtual 1aw library

1. The plaintiff is not entitled to any allowance under either will.

2. He is not entitled to live in the house No. 128 Calle Clavel.

3. He is entitled to be paid, under the ninth clause of the will of Doña Honorata, the
sum of 1,500 pesos, in addition to the 1,500 pesos already received under that
clause.

4. He is entitled to the share of the estate left by the will of Doña Honorata to Doña
Luisa during her life, after deducting 1,000 pesos.

5. This share can not be set off to him in this suit, but only in a proceeding to which
all persons interested in the estate are parties.

6. His interest in the share left to Doña Luisa during her life by the will of Don
Nicolas can not be determine in this suit.

7. The executor can not be required to render in this suit his accounts as such
executor.

8. The plaintiffs rights under the seventh clause of the two wins, to the share left to
Don Clemente for life are not before us for decision.

III. After judgment had been rendered in the court below and a bill of exceptions
allowed, but before the record had been sent to this court, Don Clemente del
Rosario, the defendant, died. After his death Don Rosendo del Rosario, who was
named in both wins to succeed to the executorship on the death of Don Clemente,
appeared in the court below and withdrew the appeal and bill of exceptions.
Thereupon the widow of non Clemente, for herself and in representation of the
minor son of her late husband, asked and was granted leave to prosecute the
appeal.

This ruling was correct. According to the Spanish authorities, anyone legally affected
by the judgment might appeal. According to the American authorities, if a trustee
refuses to appeal, the beneficiary may do so in his name.

That the son of Don Clemente has a direct interest in the question of the allowance
of 75 pesos a month to the plaintiff is plain. We have held that in respect to this
allowance the executor represents the estate and the judgment against him binds it.

It would be manifestly unjust to allow an executor, with perhaps only a slight

personal interest in an estate, by withdrawing an appeal, to fasten upon the estate a
claim which, as we hold, it should not bear.

IV. At the argument of this case on the merits, after the appellant had closed, the
respondent made the point for the first time that the appellants brief contained no
assignment of errors.

This is true. But a full assignment of errors is found in the bill of exceptions at pages
14 and 15. The appellee answered the brief of the appellant without making any
suggestion of this mistake. He has been in no way prejudiced by it, and are can not
affirm the judgment on this ground.

The judgment of the court below is reversed and the case remanded with directions
to the court below to enter judgment in accordance with this opinion. The costs of
this instance will be equally divided between the parties. So ordered.
G.R. No. L-3890

BAUTISTA ANGELO, J.:

Ignacia Lao, in her capacity as special administratrix of the estate of the late Albina
de los Santos, as well as heir of said deceased, and Domingo Lao, also as heir of the
deceased, filed a complaint for the annulment of an order of the Court of First
Instance of Manila dated January 28, 1949, rendered in the testate proceedings of
the deceased, approving the sale of certain real property in favor of Francisco Dee,
and for the annulment of the sale itself. The complaint was filed against Francisco
Dee as vendee and Maria Lao, a co-special administratrix of the estate, also an heir,
in her individual capacity.

The order of the probate court is sought to be annulled on the following grounds:
the court overlooked the fact that a special administrator has no power to sell real
property; the court approved the tale in the belief that Ignacia Lao had given her
consent to the sale, when in fact she was Induced to sign the deed of sale by Maria
Lao and her attorney through misrepresentation that the deed of sale was a mere
petition for the approval of the proposed sale; the court did not know that the
vendee Francisco Dee was not a Filipino citizen, or that Ignacia Lao executed the
deed of sale on the alleged misrepresentation that Francisco Dee was a Filipino
citizen.

Both Francisco Dee and Maria Lao filed separately a motion to dismiss. The lower
court granted the motions to dismiss and ordered the dismissal of the complaint,
with costs against the plaintiffs. From this order the plaintiffs appealed to this Court.

Appellants have assigned seven errors as committed by the lower court, but we will
only discuss some which we believe are decisive of the present appeal.

The first error assigned refers to the lifting of the order of default entered against
defendant Francisco Dee. It appears that, because of his failure to file his answer, or
put in a responsive pleading within the reglementary period, on motion of the
plaintiffs, Francisco Dee was declared in default. He filed a motion to lift the order of
the court, attaching thereto affidavits of merits to prove that his failure to answer, or
file a motion to extend the time to plead to the complaint within the reglementary
period, was due to mistake or excusable negligence which ordinary prudence could
not have guarded against, and that Francisco Dee has a meritorious defense against
the complaint. They attempted to show that, prior to the expiration of the
reglementary period, Francisco Dee filed a lengthy motion to dismiss, which directly
challenged the right of the plaintiffs to institute the action, and that, during that
period of time, a case for ejectment between the same parties was pending in the
municipal court wherein many incidents had arisen which heavily occupied and
absorbed the time and attention of Dee's counsel. The motion was heard and argued,
and, thereafter, the court lifted the order, allowing Francisco Dee to file a responsive
pleading. This is now assigned as error by appellants.

It is our ruling that motions of this nature are addressed to the sound discretion of
the court, and unless abuse of discretion Is shown, the order of the court should be
left undisturbed. Here there is no such showing. It is true that instead of filing a
responsive pleading, Dee filed a motion to dismiss; but this may be allowed under
Rule 8, Section 1, of the Rules of Court, if one has good grounds to do so. The
dismissal of this case proves that Dee's move was justified. This error is, therefore,
without merit.

One of the grounds on which the lower court predicated its order of dismissal is that
Ignacia Lao has no legal capacity to sue as special administratrix of the estate of
Albina de los Santos, she having ceased to be such administratrix by order of the
probate court dated July 6, 1949, which accepted her resignation filed almost two
years ago. Appellants now assign this as error.

The fact that Ignacia Lao tendered her resignation as administratrix on August 6,
1947 and that her resignation was approved by the court on July 6, 1949, relieving
her as administratrix, is not disputed. Not having the character of administratrix on
August 4, 1949, when she filed this action, she had no legal capacity to sue. And
although she subsequently appealed from the order of the court accepting her
resignation, this did not cure her incapacity because the appeal was later dismissed
by the Supreme Court. This error, therefore, has become moot.

Another ground on which the lower court based its order of dismissal is that Ignacia
Lao and Domingo Lao were suing as heirs of the deceased Albina de los Santos to
recover the title and possession of a property which formed part of the estate which,
according to the court, they have no right to do unless such property has been
assigned to them as their share In the Inheritance. This is also assigned as error.

Again we find no error in this respect. Section 8, Rule 88, of the Rules of Court, bars
the filing of an action by an heir to recover the title or possession of lands belonging
to the estate until there is an order of the probate court assigning said lands to such
heir. In other words, there oust be first a partition of the estate, and delivery of the
latter to the heir. The reasons for this rule are aptly stated by former Chief Justice
Moran as follows: "An executor or administrator who assumes the trust, takes
possession of the property left by the decedent for the purpose of paying debts.
While his debts are undetermined and unpaid, no residue may be settled for
distribution among the heirs and devisees. Consequently, before distribution is
made or before any residue is known, the heirs, or devisees have no cause of action
against the executor or administrator for recovery of the property left by the
deceased." (II Moran, Comments on the Rules of Court, p. 416).

Here, there has been so far no partition of the estate. Precisely the property was sold
as a preliminary step to partition. The sale was made by express authority of the
court on the strength of the petition of the heirs themselves. Including the now
appellant Ignacia Lao. The sale was made by the two administratrices of the estate.
The terms of the sale were more than what the heirs expected. The authority was to
sell the property for P250,000, and yet Francisco Dee paid P260,000. The heirs,
therefore, have no reason to complain. In any event, under the rule, only the two
administratrices of the estate can Impugn the validity of the sale, and we doubt if
this can be done, for the court would not sanction the undoing of what it has been
accomplished through its own express authority. This is not, therefore, a case which
comes under the exception of the rule that "when the executor or administrator is
unwilling or fails or refuses to act, in which event the heirs may act in his place"
(Pascual v. Pascual, Vol. I, Off. Gaz., No. 6 [1942] p. 342).

Let us now come to the crucial error assigned by appellants, which refers to the
conclusion of the lower court that the cause of action of the complaint based on the
alleged ground of fraud employed on Ignacia Lao is already barred by a prior
judgment for the reason that the same extrinsic fraud had already been passed upon
by the probate court and the Supreme Court.

For an enlightened discussion of this error there is need to make a brief narration of
the background which led the court to conclude that the cause of action based on the
alleged extrinsic fraud is already barred by a prior judgment.

The record shows that on May 28, 1948, the administratrices of the estate of Albina
de los Santos, Maria Lao and Ignacia Lao, with the express conformity of the other
heirs Antonio and Alexandra Lao, filed a motion to sell the property in question. This
was opposed by the heir Domingo Lao. This opposition notwithstanding, the court
issued an order authorizing the sale for not less than P250,000.

On July 22, 1948, Domingo Lao filed a motion for reconsideration. This motion was
denied. Domingo Lao filed another motion for reconsideration. This motion was also
denied. From these orders no appeal was interposed.

On January 28, 1949, Maria Lao, a co-administratrix, informed the court that the
property was sold to Francisco Dee for P260,000, and prayed that the sale be
approved. By order of January 28, 1949, the sale was approved.

On January 31, 1949, Domingo Lao filed an urgent petition for revocation of the
approval of the deed of sale, to which the vendee objected. On February 23, 1949,
the court denied the petition as entirely without merit.

On February 28, 1949, Domingo Lao filed another motion for reconsideration
through a new counsel. This time, the motion was opposed not only by the vendee,
but by his co-heirs Maria Lao and Alejandra Lao. On March 10, 1949, the court again
denied the motion for reconsideration.

On March 26, 1949, Domingo Lao filed a petition for certiorari in the Supreme Court
praying for the annulment of the order of approval of the sale in favor of Francisco
Dee, as well as for the annulment of the deed of sale. On April 18, 1949, the Supreme
Court dismissed the petition for lack of merit.

On May 3, 1949. Domingo Lao filed a motion for reconsideration alleging for the first
time that Ignacia Lao was the victim of fraud and misrepresentation by her co-
administratrix Maria Lao and her attorney. He also claimed that Ignacia Lao was
likewise the victim of fraud on the part of the vendee, Francisco Dee, as regards his
Filipino citizenship. The Supreme Court denied the motion for reconsideration. On
May 20, 1949, Domingo Lao filed another motion for reconsideration disputing the
validity of the sale on the ground that a special administrator does not have power
to sell real property belonging to the estate. By resolution of June 23, 1949, this
motion was also denied.

On June 27, 1949, Domingo Lao, Antonio Lao and Ignacia Lao filed a motion in the
probate proceedings for the annulment of the same order based on the same ground
of extrinsic fraud. To this motion Francisco Dee filed an opposition, aid on July 2,
1949, the court issued an omnibus order denying the motion for lack of merit. A
motion for reconsideration was filed by petitioner, and was again opposed by
Francisco Dee, and on July 20, 1949, the court denied the motion stating that "no
further petition or motion with respect to this matter will be entertained". No
appeal was interposed to these orders of the probate court.

As may be seen, the order of the court approving the deed of sale in favor of
Francisco Dee was issued on January 28, 1949. This is the order which was assailed
by Domingo Lao in several motions he filed in the probate court and in a petition for
certiorari he filed in the Supreme Court. As may be noticed, Domingo Lao made no
less than six attempts to obtain the revocation of said order in the probate court,
alleging varied grounds, some of which are the same as those on which the present
action is based, and made similar attempts to obtain the same relief in the Supreme
Court, but all proved futile, inasmuch as both the probate court and the Supreme
Court found flimsy the grounds on which the motions were based. It should be
particularly noted that when the alleged fraud was raised for the first time before
the Supreme Court, Domingo Lao attached to his motion for reconsideration no less
than six exhibits in an attempt to substantiate the fraud allegedly employed on
Ignacia Lao, one of them being an affidavit of Ignacia Lao herself, and the other an
affidavit of another heir Antonio Lao. But in spite of those exhibits, the Supreme
Court found the claim not meritorious. It should also be mentioned that when
Domingo Lao made another attempt to annul the order approving the sale in the
probate court, after his several attempts to secure the same purpose in the Supreme
Court had failed, he was Joined by his co-heirs Antonio Lao and Ignacia Lao, and
attached to their motion for annulment the same exhibits they submitted to the
Supreme Court. This time they made a serious attempt to prove their charges of
fraud. But again they failed to convince the court, as shown by the fact that it denied
the motion with the admonition that "no further petition or motion with respect to
this matter will be entertained". The court apparently did not believe the charges of
fraud and must have found them to be mere alibi to harass the other heirs and the
vendee and frustrate the sale. This is reflected in the following passages of the order
of the probate court:

"The order of January 29, 1949 was assailed in a petition for certiorari (L-2891)
filed In the Supreme Oourt in March or April, 1949. The ground now invoiced there
have been taken into consideration by the Supreme Court in summarily dismissing
the petition.

Prior to the filing of the petition for certiorari, petitioner Domingo Lao moved for a
reconsideration of the order of January 29, 1949 but no mention of fraud was made
In his motion although the alleged fraud already existed at that time (February 28,
1949, date of the filing of the motion for reconsideration) as maybe inferred from
the dates mentioned in Exhibits "E" and "F" of the motion now under consideration.

The denial of the petition for certiorari is conclusive upon the validity of the order of
this Court of January 29, 1949, approving the sale. The grounds now invoked have
been considered by the Supreme Court in denying the petition. The alleged fraud
already existed at the time the motion for reconsideration was filed by Domingo Lao
on February 28, 1949 and can no longer be entertained now especially after it has
been invoked in the petition for certiorari".
It, therefore, appears that the questions now involved in this case had been passed
upon once by the Supreme Court and once by the probate court and were both
decided against the pretense of the herein appellants. While it may be contended
that the resolution of the Supreme Court denying the annulment of the order
approving the sale on the ground of extrinsic fraud does not constitute res
judicatabecause it has no jurisdiction to pass on that question, the issue therein
being merely excess of Jurisdiction, or abuse of discretion, however, it cannot be
denied that the omnibus order of the probate court dated July 2, 1949, has a decisive
effect. The probate court had jurisdiction to act on that matter. The question was
raised by the same appellants herein, who were Joined by their co-heir Antonio Lao,
and the same was opposed by the same parties who now stand as appellees. The
movants presented evidence to substantiate their charges of fraud. The decision was
adverse to them. The order became final for lack of appeal. That order, therefore,
has now the effect of res judicata, there being identity of parties and of subject
matter. That order bars the present action.

Having reached the foregoing conclusion, we do not deem it necessary to discuss the
other errors assigned by the appellants.

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

G.R. No. L-31679 January 14, 1930

CELSO S. GUANCO, administrator-appellee,

vs.
PHILIPPINE NATIONAL BANK, oppositor-appellant.
Roman J. Lacson and Elias N. Recto for appellant.
Abelardo Hilado for appellee.

OSTRAND, J.:

On January 18, 1921, the now deceased EspiridionGuanco obtained a credit, now
exceeding P175,000, with interest, from the Philippine National Bank, pleading as
security 250 shares of the capital stock of the Binalbagan Estate, Inc., and 6,196 of
the capital stock of the Hinigaran Sugar Plantation, Inc. In the following year, the
Hinigaran Sugar Plantation, Inc., gave the bank a promissory note for P273,932.11,
the original debt of Guanco being included therein. Shortly afterwards, the
Hinigaran Sugar Plantation gave a mortgage on real property in favor of the
Philippine National Bank for P350,000 as security for the note and for such future
credits as might be granted the company. The shares given the bank as security for
the transaction of January 18, 1921, were not mentioned in the mortgage.

After Guanco's death, the administrator of his estate, on October 5, 1928, filed a
petition in the intestate proceedings asking that the Court of First Instance issue an
order requiring the president or manager of the bank to appear in court for
examination in regard to the 250 shares of the Binalbagan Estate under section 709
of the Code of Civil Procedure. The court issued the order in conformity with the
administrator's motion and ordered the manager of the bank, Miguel Cuaderno, to
appear before the court. Cuaderno did not appear, but the attorney for the bank filed
an answer to the administrator's motion in which answer it was asserted that the
pledge of the 250 shares was still in force as security for the debts of Guanco and the
Hinigaran Estate. Thereupon the court, in the same proceedings and without any
trial, ordered the manager of the bank to deliver the said 250 shares to the
administrator of the Guanco Estate within thirty days from notice of the order.

Upon appeal to this court, counsel for the bank maintains that the court below
exceeded its jurisdiction in ordering the delivery of the shares to the administrator
in a proceeding under section 709 of the Code of Civil Procedure. This contention is
entirely correct. The section in question reads as follows:

SEC. 709. If an executor or administrator, heir, legatee, creditor, or other

person interested in the estate of a deceased person complains to the court
having jurisdiction of the estate, that a person is suspected of having
concealed, embezzled, or conveyed away any of the money, goods, or chattels
of the deceased, or that such person has in his possession, or has knowledge
of any deed, conveyance, bond, contract, or other writing which contains
evidence of, or tends to disclose the right, title, interest, or claim of the
deceased to real or personal estate, or the last will and testament of the
deceased, the court may cite such suspected person to appear before it, and
may examine him on oath on the matter of such complaint; if the person so
cited refuses to appear and answer such examinations, or to answer such
interrogatories as are put to him, the court may, by warrant, commit him to
jail or prison of the province, there to remain in close custody until he
 submits to the order of the court; and such interrogatories and answers shall
be in writing and signed by the party examined, and filed in the clerk's office.

As will be seen, the section quoted only provides a proceeding for examining
persons suspected of having concealed, embezzled, or conveyed away property of
the deceased or withholds information of documentary evidence tending to disclose
rights or claims of the deceased to such property or to disclose the possession of his
last will and testament. The purpose of the proceeding is to elicit evidence, and the
section does not, in terms, authorize the court to enforce delivery of possession of
the things involved. To obtain the possession, recourse must therefore generally be
had to an ordinary action. It has so been held in the cases of Chanco vs. Madrilejos
and Abreu (12 Phil., 543) and Alafriz vs. Mina (28 Phil., 137).

In issuing the order from which the appeal has been taken, the court below relied
largely on a dictum in the Alafriz case that "there may be cases, where papers and
documentary evidence of ownership of property are held by a third person
belonging to the estate of a deceased person, in which it would be perfectly proper
to the court to order the same turned over to the court." That may be true; it might,
for instance, apply to the possession of a will. But in the same case, the court also
said that "the court had no right to deprive her (the appellant) of her evidence
relating to the property, until the question of ownership had been settled."

That is practically this case. The bank maintains that the pledge of the 250 shares is
still in force. It may have documentary evidence to that effect, and it was not under
obligation to turn such evidence over to the court or to a third party, on the strength
of a citation under section 709. The possession of the certificates of the shares in
question is a part of that evidence and it is obvious that if they are surrendered to
the administrator of the estate and possibly disposed of by him, the bank will lose its
day in court, and its rights can only be determined in a corresponding action.

The appealed order is hereby reversed and annulled without costs. So ordered.

G.R. No. L-22451 December 22, 1924

TAN SEN GUAN, special administrator of the intestate estate of TAN PENG SUE,
(alias TAN PENG CHO), (alias CHAN BAI CHOO), plaintiff-appellee,
vs.
GO SUI SAN, administrator of the testate estate of ANTONIO
TAMPOCO, defendant-appellant.

Rafael Palma for appellant.

Jesus G. Barrera and Paredes, Buencamino and Yulo for appellee.
VILLAMOR, J.:

The record shows that the plaintiff is the administrator of the intestate estate of Tan
Peng Sue, just as the defendant is the administrator in the testamentary proceeding
for the settlement of the estate of Antonio Tampoco; that, according to the books
kept by the defendant administrator, Antonio Tampoco owed Tan Peng Sue, about
the month of January, 1920, the sum of P25,802.60, which with the interest
stipulated by the two deceased Tan Peng Sue and Antonio Tampoco in their lifetime
at the rate of 9 6/10 per cent per year, amounted to P30,272.89 at the end of the
year 1922; that upon the death of Antonio Tampoco, which occurred on February 5,
1920, proceeding was instituted in the Court of First Instance of Manila for the
settlement of his estate; that on December 14 of that year commissioners were
appointed to hear and decide whatever claim might be presented against the estate;
that said commissioners qualified as such in due time, and rendered their final
report on June 27, 1921, which was approved by the court below on July 14 of said
year; that about August 30, 1922, after the approval by the court of the report of the
committee on claims, the plaintiff, in his capacity as administrator of the estate of
Tan Peng Sue, moved the court that the committee on claims be again authorized, or
a new committee appointed, to hear and decide a claim that he had and which he
was to present against the estate, alleging, among other grounds, that the
administrator Go Sui San had been assuring the heirs of Tan Peng Sue that they
would not lose their credit, were in no need of presenting their claim, and would be
paid by the heirs of Antonio Tampoco as soon as they should ask for it, and that in
the meantime the credit might continue in the business of the deceased Antonio
Tampoco and thus earn interest.

Passing upon this motion, the Honorable Geo. R. Harvey, judge, on September 21,
1922, appointed new commissioners, holding that the committee on claims did not
comply with the imperative provisions of sections 687 and 693 of the Code of Civil
Procedure in rendering its report, and that the motion of the plaintiff Tan Sen Guan
was in accordance with the provisions of section 690 of Act No. 190. After due
proceeding the new commissioners admitted the claim of the plaintiff,
recommending its payment by the defendant administrator, which was by
agreement of the parties estimated at P30,272.89 at the end of the year 1922.

On December 22, 1923, the court presided over by Judge Anacleto Diaz rendered
decision, absolving the defendant administrator of the estate of Antonio Tampoco
from the complaint, holding that the commissioners appointed on September 21,
1922, had no authority under the law to hear and decide said claim, because the
court that had appointed them had on the said date no jurisdiction to appoint them
in view of the fact that more than fourteen months have elapsed since their final
report was submitted by the former committee on claims in the aforesaid
testamentary proceeding and approved by the court. To this decision the plaintiff
excepted on the 29th day of the same month, and moved for the new trial on January
9, 1924, on the ground that said decision was against the law and the facts proven at
the trial.
On March 27, 1924, the lower court presided over by the Honorable Geo. R. Harvey,
judge, after considering the motion for new trial, rendered a new decision, setting
aside that of December 22, 1923, and ordering the administrator of the estate of
Antonio Tampoco to pay the administrator of the estate of Tan Peng Sue the sum of
P28,802.60, with interest thereon at the rate of 9 6/10 per cent annum from March
28, 1920. From this decision the administrator of the estate of Antonio Tampoco
appealed, and his counsel in this court prays for the reversal of the decision
appealed from, alleging that the lower court erred: (a) In setting aside its former
decision and in entering a new decision entirely contrary to the preceding one,
instead of granting a new trial; (b) in holding that the claim presented was valid and
effective at the time it was presented, and in not holding that the same was
extinguished at that time under the law; and (c) in not absolving the defendant from
the complaint.

The first assignment of error raises the same question as that in issue in the case
of Cordovero and Alcazar vs. Villaruz and Borromeo, R.G. No. 21586, 1 recently
decided by this court, as to the legal effect of a motion for new trial under section
145, subsection 3, of the Code of Civil Procedure. In that case it was held that the
discretionary power granted the judges by section 145 of the Code of Civil
Procedure to revise or amend their judgments, before the same become final, may
be exercised upon a motion based on section 145, subsection 3, jointly with, or
separately from the power to grant new trial, although the exercise of the power to
grant new trial necessarily requires the revocation of the former judgment; that
under section 145, a judge may correct errors in his decisions, and in revoking his
original decision by amending it upon the motion a reopening of the case. Therefore
this assignment must be overruled.

Disregarding this feature of the case, what is important to decide is whether or not
this action has prescribed, as contended by the defendant.

The pertinent part of section 695 of the Code of Civil Procedure provides:

A person having a claim against a deceased person proper to be allowed by

the committee, who does not, after publication of the required notice, exhibit
his claim to the committee as provided in this chapter, shall be barred from
recovering such demand or from pleading the same in offset to any action,
except as hereinafter provided.

Provisions similar to this are found in the statutes of many, if not all the, states of the
Union, and are ordinarily alluded to as statutes relative to claims not presented in
due time. It was enacted in order to facilitate the speedy liquidation of estates, and
to that end, it bars all proceeding when the claim is one that was not presented after
the publication of the notice required.

To avoid the effect of section 695, the plaintiff lays stress on two circumstances. In
the first place, he says that his failure to present the claim to the committee
appointed by the court on September 21, 1922, was due to the machinations and
fraudulent and false representations of the defendant. While it is easy to understand
that the interests of the plaintiff, in his capacity as administrator of the estate of Tan
Peng Sue, were not duly protected, and that his conduct was, to a certain extent,
influenced by the unfavorable circumstances that surrounded him, yet we hold that
prescription cannot be avoided on the ground of fraud or undue influence. The
failure of Tan Chu Lay, heir of Tan Peng Sue, to present his claim was an omission
committed by an heir who had knowledge of the existence of the credit of his
deceased father. The fact that Tan Chu Lay might have been induced by fraudulent
machinations and unlawful influence of the defendant administrator cannot affect
the legal consequences of said act. And even if it be admitted that the widow of Tan
Peng Sue was in China while the committee on claims was acting in the proceeding
for the settlement of Antonio Tampoco's estate, still the result would be the same.
The law does not make any reservation or exception whatever, and this court
cannot make either.

. . . Where the statute of non-claim makes no exception as to any persons or

class of persons, the courts can make none; and hence in the absence of some
provision to the contrary, the statutes of non-claim run against non-resident
as well as resident, and infant as well as adult claimants, and also against
insane persons, and the estate of a deceased creditor. According to the weight
of authority the statutes of non-claim, unlike the general statutes of
limitations, run against the state. . . . (18 Cyc., 468.)lawphi1.net

Secondly, to avoid the effect of section 695, the plaintiff alleges that the notice to the
creditors was not published in the manner prescribed by section 687 of the Code of
Civil Procedure, which provides:

The committee so appointed shall appoint convenient times and places for
the examination and allowance of claims, and, within sixty days from the time
of their appointment, shall post a notice in four public places in the province
stating the times and places of their meeting, and the time limited for
creditors to present their claims, and shall publish the same three weeks
successively in a newspaper of general circulation in the province, and give
such other notice as the court directs. The court, in the commission issued to
the committee, shall designate the paper in which the notice shall be
published, and the number of places in the province in which it shall be
posted, and any other mode of notice which the court directs.

Section 693 requires the committee to state in their report among other things, "the
manner in which notice was given to the claimants." The report of the committee
was introduced as Exhibit L in the testamentary proceeding, and really it was not
written exactly in accordance with the technicality of the law. There is, however,
attached to said report, as a part thereof, the affidavit of the editor of the
newspaper La Nacion, wherein it appears that the committee on claims in the
aforesaid proceeding had published for three consecutive weeks a notice to
claimants, stating that they might present their claims within the period of six
months, the committee to hold meetings at the office of Attorney M.G. Goyena, room
No. 1, 34, Escolta, on the last Wednesday of each month at 3:30 p. m. for the purpose
of hearing and deciding claims. It, thus, appears that the committee complied with
the requirements of the law as to publication of notice, so much so that in the
stipulation of facts it is stated that the commissioners qualified, and under the date
of December 14, 1920 published in the newspaper La Nacion the notice to claimants
prescribed by the law for three consecutive weeks. There are also attached to the
report of the committee, the appointment issued by the court, in which the places
are designated where the notice should be posted, and the newspaper in which it
should be published for three weeks, giving the creditors the period of six months to
present their claims. We think that the documents attached to the report of said
committee, the stipulation of facts and the approval of said report by the trial court
constitute a conclusive proof that the commissioners have complied with the
statute, requiring the publication of the notice to the creditors.

Before a credit may be held barred by our procedural statutes relative to liquidation
of inheritance, it must appear, among other things, that the committee have
designated convenient hours and places for the holding of their meetings for the
examination and admission of claims, and that they have published this fact in the
manner provided by the law. Unless this is done, the right of a creditor cannot
prescribe, and he who claims the benefit of prescription has the burden of proof.

In these terms does the Supreme Court of Vermont comment on the statute of that
State from which section 695 of our Code of Civil Procedure was taken. (Roberts vs.
Estate of Burton, 27 Vt., 396.) Under general principles, there can be no doubt but
that, as the statutory provision in question has a tendency to destroy rights, it
should not be extended to cases distinct from those included in its language; and all
the authorities, without exception, hold that statutes of this character must be
strictly construed, and the legal prescription of action will not be held to take effect
in a particular case unless the provision relative to the publication of notices have
been entirely complied with.lawphi1.net

Under section 690, a creditor who has failed to present his claim within the period
fixed by the committee on claims may apply to the court, within six months after the
period previously fixed, for the renewal of the commission for the purpose of
examining his claim. Also a creditor may make such application even after six
months from the expiration of the period formerly fixed and before the final
settlement of the estate, if the committee shall have failed to give the notice required
by section 687. The record shows that the application of the plaintiff was presented
fourteen months after the expiration of the period fixed for the filing of claims. And
while it was presented before the final settlement of the estate of Antonio Tampoco,
yet, it having been proved that the committee had published in the newspaper La
Nacion the notice required by law, there was no possible ground for granting said
application. Even considering this application under section 113 of the Code of Civil
Procedure, we believe that the lapse of fourteen months is an unsurmountable
barrier opposing the granting of said application.

It matters not that the defendant did not appeal from the order of the lower court
appointing new commissioners, if it is taken into consideration that it was entered
beyond the authority given by section 690. And as the defendant objected to said
appointment, we believe that he is now entitled to raise the point in this court.

For the foregoing the judgment appealed from is reversed, and it is hereby declared
that the plaintiff appellee has lost his right to enforce his claim in this proceeding,
without pronouncement as to costs. So ordered.