G.R. No. L-38051 December 26, 1974 SEVERINO PAREDES, and VICTORIO G. IGNACIO, petitioners, vs. THE HON.

JOSE L. MOYA, Judge of the Court of First Instance of Manila, Branch IX and CARMENCITA NAVARROAdministratrix (Substituted for deceased August Kuntze), respondents. Camilo V. Pea & Associates for petitioners. Manuel S. Tonogbanua for respondents.

No. 55880 for appellant's failure to file the printed record on appeal, and so the record of the case was ordered remanded respondent court. 4 A motion for execution was filed by plaintiff-appellee (petitioner Parades). On August 22, 1973 the provincial Sheriff of Rizal levied on the properties of defendant-appellant (now substituted by the Administratrix of the estate of the Deceased, consisting of two (2) lots covered by TCT No. 45089 issued by the Register of Deeds of the Province of Rizal. 5 In the auction sale conducted by the Sheriff of Rizal on October 2, 1973, plaintiff-appellee (petitioner Paredes) being the highest bidder, acquired said lot for the total sum of P17,296.16, as per certificate of sale which was duly annotated in the back of TCT No. 45089. 6 However, in spite of a Motion to Quash the Writ of Execution filed by respondent-appellant (Administratrix) on September 6, 1973 and still pending resolution, Parades (plaintiff-appellee, below) sold the property he acquired in execution sale in favor of his co-petitioner, Victorio Ignacio on October 10, 1973. 7 Notwithstanding the vigorous opposition to the Motion to Quash the Writ of Execution, respondent Court, on November 2, 1973, issued an order setting aside the Writ of Execution of August 22, 1973, and the Sheriff's Sale and Public Auction of the property covered by TCT No. 45089, without prejudice to the filing of the judgment as a claim in the proceedings for settlement of the estate of the deceased. 8 Various questions have been raised by the parties. We shall now rule on them. We hold that in the case of a money claim, where the defendant dies during the pendency of his appeal from the judgment rendered against him, the appeal should not be dismissed; it should continue, but the deceased defendant should be substituted by his legal representative, namely, the executor or administrator of the estate. If the judgment of the lower court is affirmed, the plaintiff must afterwards go to the probate court for an order directing the executor or administrator to satisfy the judgment. The Court of First Instance

FERNANDEZ, J.:p This is a petition for certiorari impugning the legality of the order of the respondent court dated November 2, 1973, nullifying its order of execution issued on August 18, 1973 pursuant to the judgment that has become final and executory on June 28, 1973, and the corresponding levy on execution on August 22, 1973 and the public auction sale held on October 2, 1973. The background facts and circumstances of the instant case are as follows: Petitioner Severino Parades commenced a suit on January 4, 1964 in CFI-Manila, as Civil Case No. 55880, 1 for the collection of separation and overtime pays against his employer, August Kuntze. On March 5, 1971, a decision was rendered against the defendant August Kuntze, from which judgment, he appealed to the Court of Appeals. While the case was pending appeal in the said Court, August Kuntze died on June 19, 1972. Accordingly, plaintiff Parades (now petitioner) was duly notified. 2 Thereafter, Carmencita D. Navarro Kuntze, 3 administratrix of the estate of the deceased, was substituted in his place as party in the appealed case. On June 5, 1973 the Court of Appeals dismissed the appeal in said Civil Case

that originally rendered the judgment has no power to order its execution and a levy on the properties of the deceased because the same are already in custodia legis in the probate court where administration proceedings for the settlement of the estate of the deceased defendant are already pending. Section 21, Rule 3 of the Rules of Court, provides: When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in these rules. Conversely, if the defendant dies after final judgment has been rendered by the CFI, as in the case at bar, the action survives. And as already above stated, the appeal should proceed with the deceased defendant being substituted by his legal representative. This would prevent a useless repetition of presenting (anew) before the probate court the evidence already presented in the Court of First Instance on the validity of the claim. Consequently, contrary to respondents' claim, the judgment against the deceased Kuntze became final and executory; it was not arrested by his death on July 19, 1973. But it was error on the part of the plaintiff Paredes, now one of the petitioners, to have the money judgment in his favor executed against the properties of the deceased Kuntze. The proper remedy of plaintiff Paredes should have been to file his claim in the administration proceedings of the estate of the deceased defendant Kuntze where private respondent is the administratrix, because: All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the

decedent, must be filed within the time limited in the notice; (to the creditors) . . . . Judgment for money against the decedent, must be filed at the time limited in the notice (to creditors) before the court where the administration proceeding involving the estate of the deceased Kuntze are pending. Section 5, Rule 86 of the Rules of Court provides: All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent and judgment for money against the decedent, must be filed (before the probate court) within the time limited in the notice (to the creditors) ; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. (1st sentence, Section 5, Rule 86 of the Rules of Court) (Emphasis ours) Consequently, the respondent court, in the challenged order of November 2, 1973, correctly nullified its order of execution issued on August 18, 1973 pursuant to the judgment which became final and executory on June 28, 1973 and the corresponding levy on execution on August 22, 1973 and the public auction sale held on October 2, 1973. The judgment for money against the deceased stands in the same footing as: All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, (1st sentence, Sec. 5, Rule 86 of the Rules of Court), Rule 86 of the Rules of Court),

although the validity of the money claim covered by a judgment against the decedent which has already become final and executory can no longer be litigated in the court where administration proceedings for the settlement of the properties of the deceased are still pending, unlike the other money claims whose validity may yet be challenged by the executor or administrator. In the case of Aldamiz vs. Judge of the Court of First Instance of Mindoro, promulgated on December 29, 1949 (85 Phil. 228), We already held that the writ of execution was not the proper procedure for the payment of debts and expenses of the administration. The proper procedure is for the court to order the administratrix to make the payment; and if there is no sufficient cash on hand, to order the sale of the properties and out of the proceeds to pay the debts and expenses of the administration. We followed the same ruling in the case of Domingo vs. Garlitos, June 29, 1963, 8 SCRA 443, with respect to the payment of estate and inheritance taxes. The petition to set aside the above orders of the court below and for the execution of the claim of the Government against the estate must be denied for lack of merit. The ordinary procedure by which to settle claims of indebtedness against the estate of a deceased person, as an inheritance tax, 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. To such effect is the decision of this Court in Aldamiz vs. Judge of the Court of First Instance of Mindoro, G.R. No. L-2360, Dec. 29, 1949, thus: . . . 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. Execution may issue only where the devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and expenses of administration and it is later ascertained that there are such debts and expenses to be paid, in which case "the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution if circumstances require" (Rule 39, section 6; see also Rule 74, section 4; Emphasis ours). And this is not the instant case. We hold that the same rule must be applied in connection with money judgments against the deceased that have already become final, such as the money judgment in favor of petitioner Paredes. No writ of execution should issue against the properties of the deceased. The claim for satisfaction of the money judgment should be presented in the probate court for payment by the administrator. The legal basis for such a procedure is the fact that in the testate or intestate proceedings to settle the estate of a deceased person, the properties

belonging to the estate are under the jurisdiction of the court and such jurisdiction continues until said properties have been distributed among the heirs entitled thereto. During the pendency of the proceedings all the estate is in custodia legis and the proper procedure is not to allow the sheriff, in the case of court judgment, to seize the properties but to ask the court for an order to require the administrator to pay the amount due from the estate and required to be paid." (Domingo vs. Garlitos, et al., June 29, 1963,8 SCRA, 443, 446) In this jurisdiction, a void judgment or order is in legal effect no judgment or order. By it no rights are divested. From it no rights can be obtained. Being worthless, it neither binds nor bars anyone. All acts performed under it and all claims flowing from it are void. (Chavez vs. Court of Appeals, et al., L-29169, August 19, 1968, 24 SCRA 663). Our decision in this case against the petitioner Paredes binds his copetitioner Victorio G. Ignacio not only because the order of execution and the public auction sale in question are null and void, but also because petitioner Ignacio cannot be considered as a purchaser in good faith, for Ignacio purchased the "Right of Execution Sale" of Paredes over the property in question on October 10, 1973 when, at that time, the respondent administratrix of the estate of Kuntze had already filed on September 6, 1973 a motion to quash the Writ of Execution and auction sale; as a matter of fact the validity of said writ of execution was still up for respondent court's resolution on October 14, 1973 after the parties shall have submitted memoranda on the question raised in the aforesaid motion as required by the respondent court in its order of September 29, 1973. IN VIEW OF THE FOREGOING, the order of the Lower Court nullifying its Order of Execution of August 18, 1973, the levy on execution dated August 22, 1973, and the auction sale of October 2, 1973, is hereby affirmed and the petition for certiorari is hereby DISMISSED, "without prejudice to the filing of the judgment (in favor of Paredes) as a claim in the proceedings for the settlement of the estate of the deceased (Kuntze)." Without costs.

SO ORDERED. Fernando (Chairman), Barredo, Antonio and Aquino, JJ., concur. G.R. No. L-43607 June 27, 1978 SPOUSES BENITO MANALANSAN and INES VITUGMANALANSAN, petitioner, vs. HON. MARIANO CASTANEDA, JR., presiding Judge, Branch III, CFI of Pampanga; ADORACION VDA. DE DANAN, for herself and as administratix of the ESTATE OF DOMINADOR DANAN, Spec. Proc. No. G-22, CFI Branch II, Pampanga, respondents. Abel de Ocera for petitioners. Emiliano V. Malit for respondents.

CONCEPCION JR, J.: Petition for certiorari and mandamus, to annul and set aside the order of the respondent judge, dated November 4, 1975, vacating the writ of execution he previously issued, and to direct said respondent judge to order the sale of the property involved therein, at public auction. It appears that on June 22, 1962, the spouses Dominador and Adoration Danan constituted a mortgage over their fish-pond and residential lot, situated at Lubao, Pampanga, in favor of herein petitioners, spouses Benito Manalansan and Ines Vitug-Manalansan, to guarantee the payment of the amount of P62,574.80, within one (1) year, with 12% interest thereon, compound annually. As the mortgagors did not pay notwithstanding demands, an action for the foreclosure of the mortgage was filed with the Court of First Instance of Pampanga on April 2, 1966. After trial, judgment was rendered, as follows"

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants sentencing the latters to pay the former, jointly and severally, within a period of ninety (90) days from date, the sum of P62,574.80 with interest at 12% compounded annually, from June 2, 1962 until the full obligation is paid; to pay further the sum equivalent to ten (10) percentum of the amount due and unpaid as attorney's fees, plus moral damages in the amount of P5,000.00, and costs of suit. In the event that defendants shall fail to make payment within the period heretofore stated, let the properties mortgaged and described in paragraph '3' of the complaint be sold at public auction, with the proceeds thereof to be applied to the payment of the above-mentioned mortgage indebtedness and other sums herein adjudged. 1 Defendant spouses Dominador and Adoracion Danan appealed to the Court of Appeals which modified the judgment by eliminating therefrom the portion ordering the said spouses to pay moral damages. 2 Dissatisfied, the defendant spouses filed a petition for review with this Court, 3 but their petition was denied on September 25, 1974. 4 In due time, the records of the case were remanded to the court below and upon application, a writ of execution was issued on January 13, 1975. 5 But, when the sheriff was about to levy upon the mortgaged properties, herein private respondent Adoracion Danan, opposed the levy on execution and filed a motion to set aside the writ of execution for reasons that the properties are in custodia legis and that the judgment should be presented as a money claim in the Intestate Estate of Dominador Danan, pursuant to Sec. 5. 5 , Rule 86 of the Revised Rules of Court since Dominador Danan had died on November 7, 1970, while the case was pending appeal before the Court of Appeals and intestate proceedings for the settlement of his estate had already been instituted. 6

Acting upon the motion, the respondent Judge issued an order on April 24, 1975, directing the sheriff to desist from enforcing the writ of execution, and set the incident for hearing on May 20, 1975. 7 After hearing the parties, the respondent Judge issued an order on November 4, 1975, setting aside the writ of execution. The dispositive portion of the order reads as follows: WHEREFORE, in the light of all the foregoing consideration, the Court hereby sets aside the writ of execution heretofore issued on plaintiffs' motion thru their former counsel, and in lieu thereof hereby orders that a copy of this order embodying the judgment herein sought to be executed (see paragraph 3 on page 2 hereof) be served to the Administratrix of the estate of the late Dominador Danan thru the Intestate Court, Branch II, Guagua, Pampanga, with the indorsement of this coordinate Branch of the Court for the execution of said judgment. 8 The petitioners filed a motion for the reconsideration of said order, 9 but their motion was denied. 10 Unable to obtain, relief, the spouses, Benito Manalansan and Ines Vitug-Manalansan filed the instant petition, seeking the annulment of the order dated November 4, 1975; and to direct the respondent Judge to proceed with the execution of the judgment rendered in the foreclosure proceedings. The petitioners contend that the respondent Judge abused his discretion, amounting to lack of jurisdiction, in delegating the execution of a judgment to the probate court who has no jurisdiction to enforce a lien on property. There is merit in the contention. To begin with, the saving clause in 11 Sec. 7, Rule 86 of the Revised Rules of Court, which the respondent Judge required to be performed and the observance of which he gave as reason for setting aside the writ of execution he had previously caused to be issued, and in delegating the authority to execute the judgment in the foreclosure proceedings to the

probate court, does not confer jurisdiction upon the probate court, of limited jurisdiction, to enforce a mortgage lien. Nor can it be relied upon as sufficient ground to delegate the execution of the judgment of foreclosure to the probate court. As stated, the rule merely reserves a right to the executor or administrator of an estate to redeem a mortgaged or pledged property of a decedent which the mortgage or pledgee has opted to foreclose, instead of filing a money claim with the probate court, under said Section 7 of Rule 86. While the redemption is subject to the approval of the probate court, the exercise of the right is discretionary upon the said executor or administrator and may not be ordered by the probate court upon its own motion. Besides, the action filed herein is for the foreclosure of a mortgage, or an action to enforce a lien on property. Under Sec. 1, Rule 87 of the Revised Rules of Court, 12 it is an action which survives. Being so, the judgment rendered therein may be enforced by a writ of execution. In the case of Testamentaria de Don Amadeo Matute Olave vs. Canlas, 13 the Court ruled that an action to enforce a lien on property may be prosecuted by the interested person against the executor or administrator independently of the testate or intestate proceedings "for the reason that such claims cannot in any just sense be considered claims against the estate, but the right to subject specific property to the claim arises from the contract of the debtor whereby ha has during life set aside certain property for its payment, and such property does not, except in so far as its value may exceed the debt, belong to the estate. (Emphasis supplied) Since the mortgaged property in question does not belong to the estate of the late Salvador Danan, according to the foregoing rule, the conclusion is reasonable that the probate court has no jurisdiction over the property in question, and that the respondent Judge had abused his discretion in delegating the execution of the judgment to the probate court. The fact that the defendant Salvador Danan died before, and not after the decision of the Court of Appeal became final and executory will not nullify the writ of execution already issued. Thus, in Miranda, vs. Abbas, 14 judgment was rendered two months before the death of the defendant. Since neither the defendant nor his heirs after his

death appealed from the judgment, the writ or execution was issued as a matter of course. The death of the defendant was communicated to the trial court six months after the decision had become final. The successors of the decedent contended that the writ of execution issued was void because contrary to Section 7, Rule 39, 15 the defendant died before, not after, the entry of judgment. The Court rejected the theory, saying: We cannot accept this argument. The provision (Section 7 of Rule 39) relied upon by the petitioners cannot be so construed as to invalidate the writ of execution already issued in so far as service thereof upon the heirs or successors-in-interest of the defendant is concerned. It merely indicates against whom the writ of execution is to be enforced when the losing party dies after the entry of judgment or order. Nothing therein, nor in the entire Rule 39, to our mind, even as much as intimates that a writ of execution issued after a party dies, which death occurs before entry of the judgment, is a nullity. The writ may yet be enforced against his executor or administrator, if there be any, or his successors-ininterest. In the light of the foregoing, We hold that the respondent Judge committed an error and acted with grave abuse of discretion in setting aside the writ of execution and in ordering that the judgment be served on the administratrix of the estate of the late Dominador Danan, through the intestate court, Branch II of the Court of First Instance of Pampanga, with his indorsement for the execution of the judgment. WHEREFORE, the petition is granted and the orders of the respondent Judge dated November 4, 1975 and March 31, 1976 are hereby annulled and set aside the case is remanded to the court below for the execution of the judgment. Costs against the private respondent Adoracion Danan. SO ORDERED.

Fernando (Chairman), Barredo and Santos, JJ., concur.

On January 13, 1975 judgment, trial court issued a writ of execution requiring judgment, mortgagors to pay judgment, mortgage debt, plus interest, "within 90 days from date" (meaning judgment, date of judgment, writ) and, should there be no such payment, judgment, sheriff was commanded to sell judgment, mortgaged properties at public auction. At this juncture, it should be observed, Parenthetically, that section 2, Rule 68 of the Rules of Court provides that judgment, trial court after hearing shall order that the mortgage debt should be paid into court "Within a period of not less than ninety (90) days from judgment, date of judgment, service of such order". This provision cannot be literally complied with in case judgment, mortgagor appeals from the lower court's judgment. It would seem that the period for judgment, payment to judgment, court of judgment, mortgage debt should be reckoned from judgment, date of judgment, entry of judgment. In the instant case, it may be repeated that judgment, trill court ordered judgment, payment of the mortgage debt within ninety days "from date", without specifying what date is contemplated The clerk of court in the writ of execution interpreted that phrase as ninety days from the date of the writ. The trial court acted correctly in issuing judgment, writ of execution. It erred in subsequently setting aside that writ and in directing that judgment, copy of judgment, judgment "be served to the administration" of judgment, intestate estate of Dominador Danan (said administratrix is also a party in judgment, foreclosure proceeding), "thru judgment, intestate court", "for judgment, execution of said judgment." The trial court justified that order by citing judgment, provision in petition 7, Rule 86 of judgment, Rules of Court that in case judgment, mortgagor dies, judgment, executor or administrator of his estate may redeem judgment, mortgaged property under judgment, direction of judgment, probate court. In judgment, trial courts view, in order to implement that provision, judgment, probate court has to be apprised of judgment, mortgage debt so that it can decide whether judgment, mortgaged property should be sold at public auction.

Separate Opinions

AQUINO, J., concurring: I concur. The lower court in its decision of April 23, 1969 ordered judgment, mortgagors, judgment, spouses, Dominador Danan and Adoracion F. Danan, to pay judgment, mortgage debt within ninety days "from date" and, in case of failure to do so, judgment, mortgaged properties should be sold at public auction. (Civil Case No. 2944, CFI of Pampanga, San Fernando Branch III), The mortgagors appealed to judgment, Court of Appeals. On November 7, 1970, or during judgment, pendency of judgment, appeal, Dominador Danan died but his death was not reported to judgment, court. In fact, in judgment, petition for certiorari filed in this Court on September 18, 1974, Dominador Danan was made a petitioner, as if he was still alive (L-39180, Dominador Danan, et al. vs. Court of Appeals). The Court of Appeals affirmed judgment, lower court's judgment with judgment, modification that judgment, award of moral damages was eliminated (Manalansan vs. Danan, CA-G.R. R. No. 49109-R, July 3, 1974). This Court denied judgment, petition for judgment, review of that decision (L-39180, supra). In 1971, an intestate proceeding was filed for judgment, settlement of Dominador Danan's estate. His wife, Adoracion Vitug-Danan was named administratrix (Spec. Proc. No. G-22, CFI of Pampanga, Guagua Branch II).

The trial court's interpretation of section 7 of Rule 86 is erroneous. When judgment, mortgagor, Dominador Danan, died during judgment, pendency of his appeal, judgment, action for foreclosure was not extinguished because the claim against him is not a pure money claim but an action to enforce a mortgage lien. It is an action which survived his death and which can proceed independently of judgment, intestate proceeding for judgment, settlement of his estate (Secs. 16, 17 and 21, Rule 3 and sec. 1. Rule 87, Rules of Court). The situation in judgment, instant case is not judgment, one contemplated in section 7, Rule 86 of judgment, Rules of Court which refers to a case where judgment, mortgagor is already dead at judgment, time judgment, mortgagee decides to enforce his mortgage to lien. In this case, one of judgment, mortgagors, Mrs. Danan, survived her husband and is a defendant in judgment, foreclosure proceeding. She is also judgment, administratrix of her husband's estate. She should be substituted for her deceased husband in judgment, foreclosure case, Civil Case No. 2944. The writ of execution should be served upon her. It is the, incumbent upon her to apprise judgment, probate court whether judgment, mortgaged properties should be redeemed and to suggest to judgment, probate court how funds could be raised for that purpose. That is how judgment, provision in section 7, Rule 86 may be implemented. The directive in judgment, writ of execution is a directive to redeem judgment, mortgaged properties within judgment, ninety-day period. The contention of the petitioner that judgment, mortgaged properties cannot be sold at public auction because they are in custodia legis in the inestate proceeding is wrong. lithe said properties are in custodia legis then it is judgment, San Fernando branch. where judgment, foreclosure case is pending, that has custody of judgment, said properties. At any rate, it should be noted that properties in custodia legis may now be attached (Last par. of sec, 7, Rule 57, of judgment, Rules of

Court,). The provision is not found in section 7, Rule 59 of the 1940 Rules of Court.) Antonio, J., concurs.

Separate Opinions AQUINO, J., concurring: I concur. The lower court in its decision of April 23, 1969 ordered judgment, mortgagors, judgment, spouses, Dominador Danan and Adoracion F. Danan, to pay judgment, mortgage debt within ninety days "from date" and, in case of failure to do so, judgment, mortgaged properties should be sold at public auction. (Civil Case No. 2944, CFI of Pampanga, San Fernando Branch III), The mortgagors appealed to judgment, Court of Appeals. On November 7, 1970, or during judgment, pendency of judgment, appeal, Dominador Danan died but his death was not reported to judgment, court. In fact, in judgment, petition for certiorari filed in this Court on September 18, 1974, Dominador Danan was made a petitioner, as if he was still alive (L-39180, Dominador Danan, et al. vs. Court of Appeals). The Court of Appeals affirmed judgment, lower court's judgment with judgment, modification that judgment, award of moral damages was eliminated (Manalansan vs. Danan, CA-G.R. R. No. 49109-R, July 3, 1974). This Court denied judgment, petition for judgment, review of that decision (L-39180, supra). In 1971, an intestate proceeding was filed for judgment, settlement of Dominador Danan's estate. His wife, Adoracion Vitug-Danan was named administratrix (Spec. Proc. No. G-22, CFI of Pampanga, Guagua Branch II).

On January 13, 1975 judgment, trial court issued a writ of execution requiring judgment, mortgagors to pay judgment, mortgage debt, plus interest, "within 90 days from date" (meaning judgment, date of judgment, writ) and, should there be no such payment, judgment, sheriff was commanded to sell judgment, mortgaged properties at public auction. At this juncture, it should be observed, Parenthetically, that section 2, Rule 68 of the Rules of Court provides that judgment, trial court after hearing shall order that the mortgage debt should be paid into court "Within a period of not less than ninety (90) days from judgment, date of judgment, service of such order". This provision cannot be literally complied with in case judgment, mortgagor appeals from the lower court's judgment. It would seem that the period for judgment, payment to judgment, court of judgment, mortgage debt should be reckoned from judgment, date of judgment, entry of judgment. In the instant case, it may be repeated that judgment, trill court ordered judgment, payment of the mortgage debt within ninety days "from date", without specifying what date is contemplated The clerk of court in the writ of execution interpreted that phrase as ninety days from the date of the writ. The trial court acted correctly in issuing judgment, writ of execution. It erred in subsequently setting aside that writ and in directing that judgment, copy of judgment, judgment "be served to the administration" of judgment, intestate estate of Dominador Danan (said administratrix is also a party in judgment, foreclosure proceeding), "thru judgment, intestate court", "for judgment, execution of said judgment." The trial court justified that order by citing judgment, provision in petition 7, Rule 86 of judgment, Rules of Court that in case judgment, mortgagor dies, judgment, executor or administrator of his estate may redeem judgment, mortgaged property under judgment, direction of judgment, probate court. In judgment, trial courts view, in order to implement that provision, judgment, probate court has to be apprised of judgment, mortgage debt so that it can decide whether judgment, mortgaged property should be sold at public auction.

The trial court's interpretation of section 7 of Rule 86 is erroneous. When judgment, mortgagor, Dominador Danan, died during judgment, pendency of his appeal, judgment, action for foreclosure was not extinguished because the claim against him is not a pure money claim but an action to enforce a mortgage lien. It is an action which survived his death and which can proceed independently of judgment, intestate proceeding for judgment, settlement of his estate (Secs. 16, 17 and 21, Rule 3 and sec. 1. Rule 87, Rules of Court). The situation in judgment, instant case is not judgment, one contemplated in section 7, Rule 86 of judgment, Rules of Court which refers to a case where judgment, mortgagor is already dead at judgment, time judgment, mortgagee decides to enforce his mortgage to lien. In this case, one of judgment, mortgagors, Mrs. Danan, survived her husband and is a defendant in judgment, foreclosure proceeding. She is also judgment, administratrix of her husband's estate. She should be substituted for her deceased husband in judgment, foreclosure case, Civil Case No. 2944. The writ of execution should be served upon her. It is the, incumbent upon her to apprise judgment, probate court whether judgment, mortgaged properties should be redeemed and to suggest to judgment, probate court how funds could be raised for that purpose. That is how judgment, provision in section 7, Rule 86 may be implemented. The directive in judgment, writ of execution is a directive to redeem judgment, mortgaged properties within judgment, ninety-day period. The contention of the petitioner that judgment, mortgaged properties cannot be sold at public auction because they are in custodia legis in the inestate proceeding is wrong. lithe said properties are in custodia legis then it is judgment, San Fernando branch. where judgment, foreclosure case is pending, that has custody of judgment, said properties. At any rate, it should be noted that properties in custodia legis may now be attached (Last par. of sec, 7, Rule 57, of judgment, Rules of

Court,). The provision is not found in section 7, Rule 59 of the 1940 Rules of Court.) Antonio, J., concurs. G.R. No. L-35098 March 16, 1987 GIACOMINA MARINI-GONZALES, petitioner, vs. HON. GUARDSON R. LOOD, Presiding Judge, Court of First Instance of Rizal, Sixth Branch Pasig, Rizal; CELIA ANGELESPASCUA; ELISEO ZARI, Assistant Clerk of Court of abovementioned branch, as appointed legal representative of deceased defendant RAFAEL J. GONZALES; ESTEBAN S. ANGELES; SPOUSES ROGELIO ANGELES and SINFORESA SALVADOR ANGELES; SPOUSES REMEDIOS ANGELESFERRAER and FLORENCIO FERRAER; JAIME ANGELES; SPOUSES BENJAMIN ANGELES and MERLINA TORRESACABE and her husband surnamed ACABE (first name unknown to petitioner), respondents. Norberto J. Quisumbing for petitioner. Laso Beltran & Domondon for respondents.

February 1972; and (4) 17 May 1972, which denied petitioner's motion for reconsideration of the Order dated 25 March 1972. The records show that on 19 September 1969, the herein petitioner, Giacomina Marini-Gonzales, now-deceased and represented by the special administrator of her estate, Atty. Norberto J. Quisumbing, 1 filed a complaint against her husband Rafael J. Gonzales and Celia Angeles-Pascua, Esteban S. Angeles, Rogelio S. Angeles, Sinforesa Salvador- Angeles, Remedios Angeles-Ferraer, Florencio Ferraer, Jaime Angeles, Benjamin Angeles, Merlina Torres-Angeles, and Lourdes Angeles-Acabe and her husband whose first name is unknown to the plaintiff, in the then Court of First Instance of Rizal, docketed as Civil Case no. 12296, for the annulment of allegedly fraudulent disposition if various properties, both real and personal, therein listed, made by the said Rafael J. Gonzales in favor of his codefendants, allegedly in fraud of plaintiff and in impairment of her interest in the conjugal partnership properties, and without her knowledge and consent. The complaint also asked for damages. 2 In answer, the defendant Rafael J. Gonzales claimed that all the conjugal assets which are in his possession were not used in any way for or transferred to the other defendants; and that the properties owned by his co-defendants were not derived from the conjugal properties owned by him and the plaintiff. 3 His co-defendants, for their part, alleged that the properties listed in the complaint were bought or acquired, not with funds from the conjugal partnership of plaintiff and defendant Rafael J. Gonzales, but with funds of the owners thereof. 4 Pre-trial conferences were held, and thereafter, the deposition of the defendant Rafael J. Gonzales was taken in view of his deteriorating health. The taking of his deposition, however, was not completed because he died on 5 September 1970. On 25 September 1970, the herein petitioner, in a pleading entitled "Notice of Death of Party and Omnibus Motion" notified the court of the death of the defendant Rafael J. Gonzales and of her appointment by the then Court of First Instance of Rizal (Quezon City

PADILLA, J.: This is a petition for certiorari to annul and set aside the orders issued by the respondent Judge in Civil Case No. 12296 of the then Court of First Instance of Rizal, Pasig Branch VI, on (1) 12 February 1972, which denied petitioner's Omnibus Motion; (2) 25 March 1972, appointing the respondent Eliseo Zari, assistant clerk of court of respondent court, as the legal representative of the deceased defendant Rafael J. Gonzales; (3) 14 April 1972, which denied petitioner's motion for reconsideration of the Order dated 12

branch) in Special Proceeding No. Q-14838 as special administratrix of his testate estate, and prayed that she be substituted in place of the deceased; that the pleadings, motions and papers, including the Answer with Counterclaim filed by the decedent, be withdrawn and stricken out; and that she be granted leave to amend her own complaint so as to allege therein her two capacities and rights one, as wife and two, as special administratrix of the testate estate of the late Rafael J. Gonzales. 5 Later, the probate court appointed said plaintiff (herein petitioner) as executrix in the testate estate of the late Rafael J. Gonzales. 6 She is also the sole heir under his will. 7 Considering the Omnibus Motion, respondent Judge ordered the parties "to submit their amended pleading in accordance with the Rules of Court within a period or as soon as possible." 8 Pursuant thereto, the petitioner filed a "Compliance and Motion" reiterating her prayer for the immediate grant of her Omnibus Motion filed earlier. A copy of an Amended Complaint was appended to her motion. 9 The respondent Judge, however, in an Order dated 12 February 1972, denied the Omnibus Motion for lack of merit. 10 Counsel for the petitioner received a copy of the Order on 26 February 1972, and on 25 March 1972, he filed a motion for reconsideration of said Order. 11 On that same day, 25 March 1972, the respondent Judge, upon motion of the herein private respondents, issued an Order appointing Atty. Eliseo Zari, the assistant clerk of court, the legal representative of the defendant Rafael J. Gonzales in the case. 12 Upon receipt of a copy of this Order, counsel for the petitioner also filed a motion for its reconsideration, and when both motions for reconsideration were denied on 14 April 1972 13 and 17 May 1972, 14 respectively, he filed the instant petition for certiorari with this Court. The petition was given due course 15 and on 20 March 1973, this court, upon application of the petitioner, issued a temporary restraining order restraining the respondent Judge from proceeding

with the initial reception of evidence in Civil Case No. 12297 of the Court of First Instance of Rizal, Branch VI, Pasig. 16 The first issue raised by the petitioner is whether or not the respondent Judge acted with grave abuse of discretion in denying the proposed amendment to the petitioner's complaint to the end that she, as special administratrix, later, executrix of the testate estate of her late husband Rafael J. Gonzales, be allowed to withdraw the Answer with Counterclaim filed by said deceased during his lifetime and then join cause with her, as plaintiff. The law applicable is Section 1, Rule 10 of the Rules of Court which provides as follows: Sec. 3. Amendments by leave of Court. After the case is set for hearing, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay the action or that the cause of action or defense is substantially altered. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, And after notice to the adverse party, and an opportunity to be heard. Likewise applicable is the law on estoppel to the effect that A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, and has succeeded in maintaining that position, is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. It is essential also that the party, claiming the estoppel should have acted in reliance thereon, and that his rights would be injuriously affected if his opponent were permitted to change his position. When no wrong is done a change in position should and will be allowed. The rule has no application where the knowledge or means of knowledge of

both parties is equal nor in case of mistake. Also the rule has no application to change a position with respect to matters of law. 17 There is no doubt that the proposed amendments to the petitioner's complaint would alter the position of Rafael J. Gonzales, from that of defendant to that of plaintiff. But, while the aforequoted provisions of the Rules of Court authorize the courts to disallow amendment of pleadings when it appears that the same is made to delay an action or that the cause of action or defense is substantially altered thereby the rule is not absolute. Courts are not precluded from allowing amendments of pleadings even if the same will substantially change the cause of action or defense provided that such amendments do not result in a substantial injury to the adverse party. This is due to the permissive character of said rule. In fact, this Court has ruled that amendments to pleadings are favored and should be liberally allowed in the furtherance of justice. 18 The same is true with the principle of estoppel, just mentioned. It is essential that the rights of the adverse party would be seriously affected in order to disallow a change in position, but, when no wrong is done, a change in position may be allowed. We have examined the records of this case and we find no reason, nor have the private respondents shown any, which would serve as a basis for a finding that they (private respondents) would suffer substantial injury if the proposed amendments were allowed. The mere change in the position of the deceased Rafael J. Gonzales, from defendant to plaintiff, will not, by itself, lend credence to the allegation of the petitioner in her complaint that the properties listed in the complaint belonged to the conjugal partnership of the petitioner and Rafael J. Gonzales and that they were fraudulently transferred to the private respondents, nor will it diminish the private respondents' claim that the said properties were bought or acquired by them with their own funds. The parties, in fact, have yet to prove their respective allegations. On the other hand, to disallow the amendments proposed by the petitioner would result in some absurdity. As wife and then as

executrix and sole heir of the late Rafael J. Gonzales, the petitioner would be 'giving with one hand and also receiving with the other in the event that judgment were to be rendered for or against the deceased defendant. The other issue raised is whether or not the respondent Judge abused his discretion in ordering the respondent Eliseo Zari to represent the deceased Rafael J. Gonzales as party defendant in this case. The petitioner contends that the appointment of another legal representative for the late Rafael J. Gonzales is nun and void in view of her appointment as the special administratrix, later, executrix of the testate estate of Rafael J. Gonzales, not to mention that she is the sole heir under his will. 19 We agree with petitioner's contention. Under the provisions of Section 2, Rule 87 of the Rules of Court, it is the executor or administrator of the estate of the decedent who may bring or defend actions in the name of the deceased, and tills Court has ruled that the choice of an executor is the sole prerogative of the testator and is not address to the discretion of the court. In the case of Ozaeta vs. Pecson, 20 this Court said: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered as a curtailment of the rights to dispose. And as the rights granted by him will take effect from the time of his death (Article 777, Civil Code of the Philippines), the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. It has been held that when a will has been admitted to probate, it is the duty of this court to issue letters testamentary to the person named as executor upon his application (23 C.J. 1023). It is the testator that

appoints his executor, as the question as to his peculiar fitness for such position or his want of ability to manage the estate cannot be addressed to the discretion of the county judge. (Holbrook vs. Head, 6 S.W. 592, 593, 9 Ky 755). Furthermore, the joinder of the deceased Rafael J. Gonzales as party defendant is no longer necessary and may be dispensed with, since no cross-claim has been filed against him by his co-defendants (private respondents herein); and the petitioner's right under Article 173 of the Civil Code may be enforced against third persons even without joining her husband as party defendant. We find from an the foregoing, and so rule, that the respondent Judge gravely abused his discretion in denying the petitioner's Omnibus Motion. Courts should be liberal in allowing amendments to pleadings, especially where such amendments will serve the ends of justice and avoid multiplity of suits. WHEREFORE, the petition is GRANTED and a writ issued, annulling and setting aside the Orders issued by the respondent Judge in Civil Case no. 12296 of the then Court of First Instance of Rizal Branch VI, Pasig, on 12 February 1972, 25 March 1972, 14 April 1972, and 17 May 1972. The temporary restraining order, earlier issued by this Court, is hereby made permanent. Costs against private respondents. SO ORDERED. Fernan (Chairman), Gutierrez, Jr., Paras, Bidin and Cortes, JJ., concur. Alampay, J., took no part. November 18, 1927 G.R. No. L-27486 In the matter of the estate of J. H. Ankrom, deceased. HEIRS OF

RAFAEL GREGOIRE, claimants-appellants, vs. ALBERT L. BAKER, administrator-appellee. Camus, Delgado and Recto for appellants. No appearance for appellee. STREET, J.: J. H. ANKROM. HEIRS OF RAFAEL GREGOIRE vs. ALBERT L. BAKER Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. L-27486 November 18, 1927 In the matter of the estate of J. H. Ankrom, deceased. HEIRS OF RAFAEL GREGOIRE, claimants-appellants, vs. ALBERT L. BAKER, administrator-appellee. Camus, Delgado and Recto for appellants. No appearance for appellee. STREET, J.: This appeal has been brought to set aside an order entered on March 5, 1926, by Hon. Pedro J. Rich, Judge of the Court of First Instance of Davao, authorizing the administrator of J. H. Ankrom, deceased, to exclude a large tract of land, with improvements, from the inventory of assets of the decedent.

It appears that J. H. Ankrom, resident of the Province of Davao, died on September 18, 1922; and on September 25, thereafter, the appellee, A. L. Baker, qualified as his administrator. On December 13 of the same year, the administrator filed his inventory of the assets pertaining to the estate of his decedent, in which inventory was included a tract of land covered by Torrens certificate of title and containing an area of more than 930 hectares. In this inventory, said tract of land, with the improvements thereon, was estimated at nearly P60,000. On September 24, 1924, the heirs of Rafael Gregoire, appellants herein, filed a claim against the estate of Ankrom for the sum of $35,438.78, U. S. currency, or P70, 877.56, based upon a judgment rendered in the Supreme Court of the Republic of Panama. This claim was allowed by the commissioners in the estate of Ankrom, and no appeal was at any time taken against the order so allowing it. It appears that the total recognized claims against the estate amounted originally to P76,645.13, but four of the creditors, having claims in the amount of P1,639.82, have been paid in full, leaving a balance owing by the estate of P75,005.31, the greater part of which is comprised of the claim of the appellants. As the affairs of the estate stood upon the original inventory, there appeared to be sufficient assets to pay all claimants; but while these intestate proceedings were being conducted the administrator discovered that on April 22, 1920, or about a year and a half before his death, Ankrom had executed a mortgage on the property here in question in favor of the Philippine Trust Company to secure that company from liability on a note in the amount of P20,000.00, of the same date, upon which it had made itself contigently liable. Two days after this mortgage had been executed Ankrom appears to have made an assignment of all his interest in the mortgaged property to one J. G. Jung, of Cincinnati, Ohio, for a purported consideration of the sum of P1 and other good and valuable considerations. In view of these conveyances by his intestate, the administrator presented an amended inventory, omitting therefrom the tract of 930 hectares with its improvements thereon, the same being the land covered by the transfers above mentioned. The court, however, having its attention called to the fact that the omission of this property from the inventory would leave the estate insolvent, made an order on October 7, 1925, directing the administrator to restore said item to his inventory. Nevertheless, upon a later motion

of the administrator accompanied by authenticated copies of the documents of transfer, the court made a new order, dated march 5, 1926, approving of the omission by the administrator of said property from the inventory; and its is from this order that the present appeal is here being prosecuted. From the foregoing statement it will be collected that the appellants have an undeniable credit in a large amount against the estate of the decedent, and that upon the showing of the last approved inventory the estate is insolvent. In view of these facts that appellants, assuming apparently that the assignment to Jung by Ankrom of the equity of redemption of the latter in the tract of land above mentioned was affected in fraud of creditors, are desirous of reaching and subjecting this interest to the payment of the appellants claim. The appellants also insist that it was the duty of the administrator to retain the possession of this tract of land and thereby place upon Jung, or persons claiming under him, the burden of instituting any action that may be necessary to maintain the rights of the transferee under said assignment. The administrator, on the other hand, supposes the assignment to be valid and apparently does not desire to enter into a contest over the question of its validity with the person or persons claiming under it. The precise remedy open to the appellants in the predicament above described is clearly pointed pout in section 713 of our Code of Civil Procedure, which reads as follows: When there is a deficiency of assets in the hands of an executor or administrator to pay debts and expenses, and when the deceased person made in his life-time such fraudulent conveyance of such real or personal estate or of a right or interest therein, as is stated in the preceding section, any creditor of the estate may, by license of the court, if the executor or administrator has not commenced such action, commence and prosecute to final judgment, in the name of the executor or administrator, an action for the recovery of the same and may recover for the benefit of the creditors, such real or personal estate, or interest therein so conveyed. But such action shall not be commenced until the creditor files in court a bond with sufficient surety, to be approved by the judge, conditioned to indemnify the executor or administrator against the costs of such

action. Such creditor shall have a lien upon the judgment by him so recovered for the costs incurred and such other expenses as the court deems equitable. The remedy of the appellants is, therefore, to indemnify the administrator against costs and, by leave of court, to institute an action in the name of the administrator to set aside the assignment or other conveyance believed to have been made in fraud of creditors. For the appellants it is contended that, inasmuch as no appeal was taken from the order of October 7, 1925, directing the administrator to include the land in question in the inventory, said order became final, with the result that the appealed order of March 5, 1926, authorizing the exclusion of said property from the inventory, should be considered beyond the competence of the court. This contention is untenable. Orders made by a court with reference to the inclusion of items of property in the inventory or the exclusion of items therefrom are manifestly of a purely discretionary, provisional, and interlocutory nature and are subject to modification or change at any time during the course of the administration proceedings. Such order in question not final in the sense necessary to make it appealable. In fact we note that the appealed order was expressly made without prejudice to the rights of the creditors to proceed in the manner indicated in the provision above quoted from the Code of Civil Procedure. The order appealed from not being of an appealable nature, it results that this appeal must be dismissed, and it is so ordered, with costs against the appellants. Avancea, C.J., Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. G.R. No. L-25952 June 30, 1967

THE HON. JUDGE ANDRES STA. MARIA, DOMINADOR CARDENAS, REMEDIOS CABRERA, ALBERTO M. K. JAMIR and SIMEON ENRIQUEZ, respondents. Arturo Joaquin for petitioners. Pelaez, Jalandoni and Jamir and S. V. Enriquez, for respondent Simeon Enriquez. C. E. Medina and J. M. Locsin for respondent Philippine National Bank. Bala and Enriquez for the other respondents. BENGZON, J.P., J.: Seven parcels of titled land and two parcels of untitled land, situated in Bigaa, Bulacan, were owned by Celestino Salvador. In 1941, he executed a deed of sale over them in favor of the spouses Alfonso Salvador and Anatolia Halili. Alleging that the sale was void for lack of consideration, he filed on May 12,1955, against said vendees, a suit for reconveyance of said parcels of land (CFI of Bulacan, Br. I, Civil Case No. 1082). On April 27, 1956, Celestino Salvador died, testate. As his alleged heirs, twenty-one persons1 were on May 18, 1956 substituted as plaintiffs in the action for reconveyance. And meanwhile, special proceedings for the probate of his will and for letters testamentary was instituted (CFI of Bulacan, Br. II, Sp. Proceedings No. 940). In said proceedings, Dominador Cardenas was appointed on June 11, 1956 special administrator of Celestino Salvador's testate estate.1wph1.t On September 4, 1956 the administrator filed in Sp. Proceedings No. 940 an inventory of properties of the estate, covering the same parcels of land subject matter of the reconveyance action. On September 7, 1956, Celestino Salvador's will was admitted to probate and Dominador Cardenas was appointed executor of said will. Actual issuance of letters testamentary to him was made on October 27, 1956.

MARGARITA SALVADOR, in her own behalf and as Attorney-infact of CANDIDA SALVADOR, ET AL., petitioners, vs.

Twenty-three (23) persons were instituted heirs in the will. Of these, nine (9) were not among the twenty-one (21) alleged relatives substituted in the reconveyance case; and of the twenty-one (21) substituted alleged heirs seven (7) were not instituted in the will. 2 In the suit for reconveyance, on November 26, 1956, the Court (CFI of Bulacan, Br. I) rendered judgment, ordering the defendants therein (the spouses Alfonso and Anatolia), to reconvey the parcels of land to the estate of Celestino Salvador. Appeal therefrom to the Court of Appeals was interposed by said defendants. 1wph1.t On August 12, 1961, the Court of Appeals affirmed the reconveyance judgment, with the correction that reconveyance be in favor of the twenty-one (21) heirs substituted as plaintiffs therein. About three years later, pursuant to an order of the CFI of Bulacan, Br. II, in the testacy proceedings, dated April 21, 1964, one of the parcels of land involved, Lot 6, was sold so that with its proceeds debtors who filed claims may be paid. The Philippine National Bank bought it at P41,184.00. Said amount was then deposited in the same bank by the administrator, subject to Court order. On December 18, 1964, defendants in the suit for reconveyance executed a deed of reconveyance over the subject parcels of land, in favor of Celestino Salvador's estate. Revoking the same as lot in accordance with the final judgment therein, the CFI of Bulacan, Br. I, on September 24, 1965, ordered a new deed of reconveyance to be executed, in favor of the twenty-one persons substituted as plaintiffs in that action. Accordingly, on September 30, 1965, a new deed of reconveyance was made, in favor of said twenty-one (21) persons as heirs of Celestino. Following this, on November 22, 1965, said Br. I, ordered the corresponding title certificate (TCT No. 54639) in the administrator's name, cancelled; new title certificate to be issued in the names of the same twenty-one (21) persons. Said order was carried out, and TCT No. 63734 was issued in the names of the twenty-one persons. 3

On December 7, 1965, Br. I (reconveyance court) ordered the Philippine National Bank to release the P41,184.00 proceeds of the sale of Lot 6, to the twenty-one (21) plaintiffs in the reconveyance case. Apparently, although the passbook was given by the administrator to said twenty-one persons, no release was made, as the Philippine National Bank awaited Br. II's order. Br. II, on March 1, 1966, approved the following claims against the estate: Taxes Nat'l. gov't P5,328.23 8,000.00 12,000.00 13,544.35 38,872.58 =========

Atty's fees Atty. Enriquez Atty's fees Atty. Jamir Loan R. Cabrera TOTAL........

On March 30, 1966, said Br. II (probate court), ordered return of the passbook to the administrator; and release to the administrator by the PNB of the P41,184.00, or so much thereof is needed to pay the afore-stated debts of the estate. After failing to get reconsideration of said order, the twenty-one (21) substituted heirs, on April 25, 1966, filed with Us the present special civil action for certiorari with preliminary injunction to assail the order to pay the debts of the estate with the P41,184.00 proceeds of the sale of Lot 6; and to question Br. II's (probate court) power to dispose of the parcels of land involved in the reconveyance suit in Br. I. Raised are these issues: (1) Are the parcels of land and the proceeds of the sale of one of them, properties of the estate or not? (2) Does final judgment in the reconveyance suit in favor of the twenty-one so-called heirs who substituted Celestino Salvador, bar the disposition of the reconveyed properties by the settlement court?

It is a settled point of law that the right of heirs to specific, distributive shares of inheritance does not become finally determinable until all the debts of the estate are paid. Until then, in the face of said claims, their rights cannot be enforced, are inchoate, and subject to the existence of a residue after payment of the debts (Castellvi de Raquiza v. Castellvi, L-17630, October 31, 1963; Jimoga-on v. Belmonte, 84 Phil. 545; Sec. 1, Rule 90, Rules of Court). Petitioners do not question the existence of the debts abovementioned. They only contend that the properties involved having been ordered by final judgment reconveyed to them, not to the estate the same are not properties of the estate but their own, and thus, not liable for debts of the estate. Said contention is self-refuting. Petitioners rely for their rights on their alleged character as heirs of Celestino; as such, they were substituted in the reconveyance case; the reconveyance to them was reconveyance to them as heirs of Celestino Salvador. It follows that the properties they claim are, even by their own reasoning, part of Celestino's estate. The right thereto as allegedly his heirs would arise only if said parcels of land are part of the estate of Celestino, not otherwise. Their having received the same, therefore, in the reconveyance action, was perforce in trust for the estate, subject to its obligations. They cannot distribute said properties among themselves as substituted heirs without the debts of the estate being first satisfied. At any rate, the proceeds of Lot 6 alone (P41,184.00) appears more than sufficient to pay the debt (P38,872.58); and there will remain the other parcels of land not sold. As to the question of who will receive how much as heirs, the same is properly determinable by the settlement court, after payment of the debts (Pimentel v. Palanca, 5 Phil. 436; Maningat v. Castillo, 75 Phil. 532; Jimoga-on v. Belmonte, supra). Wherefore, the petition for certiorari is denied, without costs. So ordered.

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