SPECIAL PROCEEDINGS (Atty.
Geraldine Quimosing-Tiu) 1
BONDS
EXECUTOR / ADMINISTRATOR
Rule 81, Section 1. Bond to be given issuance of
letters. Amount. Conditions. — Before an executor or administrator
enters upon the execution of his trust, and letters testamentary or
administration issue, he shall give a bond, in such sum as the court
directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true
and complete inventory of all goods, chattels, rights, credits, and
estate of the deceased which shall come to his possession or
knowledge or to the possession of any other person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his possession or
to the possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and charges on
the same, or such dividends thereon as shall be decreed by the
court;
(c) To render a true and just account of his administration to the
court within one (1) years, and at any other time when required by
the court;
(d) To perform all orders of the court by him to be performed.
Rule 81, Section 2. Bond of executor where directed in will. When
further bond required. — If the testator in his will directs that the
executors serve without bond, or with only his individual bond, he
may be allowed by the court to give bond in such sum and with such
surety as the court approves conditioned only to pay the debts of the
testator; but the court may require of the executor a further bond in
case of a change in his circumstance, or for other sufficient case,
with the conditions named in the last preceding section.
CO-EXECUTORS / CO-ADMINISTRATORS
Rule 81, Section 3. Bonds of joint executors and administrators. —
When two or more persons are appointed executors or
administrators the court may take a separate bond from each, or a
joint bond from all.
SPECIAL ADMINISTRATOR
Rule 81, Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his trust shall give a
bond, in such sum as the court directs, conditioned that he will make
and return a true inventory of the goods, chattels, rights, credits, and
estate of the deceased which come to his possession or knowledge,
and that he will truly account for such as are received by him when
required by the court, and will deliver the same to the person
appointed executor or administrator, or to such other person as may
be authorized to receive them.
CODAL PROVISIONS and COMPILATION OF CASES
AUTHORITY ISSUED TO EXECUTORS / ADMINISTRATORS
LETTERS TESTAMENTARY
Rule 78, Section 4. Letters testamentary issued when will allowed.
— When a will has been proved and allowed, the court shall issue
letters testamentary thereon to the person named as executor
therein, if he is competent, accepts the trust, and gives bond as
required by these rules.
MALOLES v. PHILLIPS
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
PACITA DE LOS REYES PHILLIPS, respondent.
-----------------------------
G.R. No. 133359 January 31, 2000
OCTAVIO S. MALOLES II, petitioner,
vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in
his Official Capacity as Presiding Judge of RTC-Makati, Branch
61, and PACITA PHILLIPS as the alleged executrix of the
alleged will of the late Dr. Arturo de Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the
Thirteenth and the Special Eighth Divisions of the Court of Appeals
which ruled that petitioner has no right to intervene in the settlement
of the estate of Dr. Arturo de Santos. The cases were consolidated
considering that they involve the same parties and some of the
issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of
Makati City, filed a petition for probate of his will1 in the Regional
Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223.
In his petition, Dr. De Santos alleged that he had no compulsory
heirs; that he had named in his will as sole legatee and devisee the
Arturo de Santos Foundation, Inc.; that he disposed by his will his
properties with an approximate value of not less than
P2,000,000.00; and that copies of said will were in the custody of the
named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-
Makati, Branch 61 issued an order granting the petition and allowing
the will. The order reads:

On 03 August 1995, the Court issued an Order setting the hearing of
the petition on 12 September 1995, at 8:30 o'clock in the morning,
copies of which were served to Arturo de Santos Foundation, Inc.
and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04
September 1995 attached to the records). When the case was called
for hearing on the date set, no oppositor appeared nor any written
opposition was ever filed and on motion of petitioner, he was
allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on
the witness stand and was directly examined by the Court through
"free wheeling" questions and answers to give this Court a basis to
determine the state of mind of the petitioner when he executed the
subject will. After the examination, the Court is convinced that
petitioner is of sound and disposing mind and not acting on duress,
menace and undue influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and voluntary will and that
he was neither forced nor influenced by any other person in signing
it.
Furthermore, it appears from the petition and the evidence adduced
that petitioner in his lifetime, executed his Last Will and Testament
(Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last
Will and Testament was signed in the presence of his three (3)
witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7",
"A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-
3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes
(Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the
presence of the testator and in the presence of each and all of the
witnesses signed the said Last Will and Testament and duly
notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-
15"); on the actual execution of the Last Will and Testament,
pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos
Foundation, Inc., with address at No. 9 Bauhinia corner Intsia
Streets, Forbes Park, Makati City has been named as sole legatee
and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de los
Reyes Phillips was designated as executor and to serve as such
without a bond.1âwphi1.nêt
From the foregoing facts, the Court finds that the petitioner has
substantially established the material allegations contained in his
petition. The Last Will and Testament having been executed and
attested as required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable to make a
Will; nor was it executed under duress or under the influence of fear
or threats; that it was in writing and executed in the language known
and understood by the testator duly subscribed thereof and attested
and subscribed by three (3) credible witnesses in the presence of
the testator and of another; that the testator and all the attesting
witnesses signed the Last Will and Testament freely and voluntarily
and that the testator has intended that the instrument should be his
Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the
petition for the allowance of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February
26, 1996.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 2
CODAL PROVISIONS and COMPILATION OF CASES
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for
intervention claiming that, as the only child of Alicia de Santos
(testator's sister) and Octavio L. Maloles, Sr., he was the sole full-
blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed
for the reconsideration of the order allowing the will and the issuance
of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips,
the designated executrix of the will, filed a motion for the issuance of
letters testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was granted, while
petitioner was required to file a memorandum of authorities in
support of his claim that said court (Branch 61) still had jurisdiction
to allow his intervention.3
Petitioner filed his memorandum of authorities on May 13, 1996. On
the other hand, private respondent, who earlier withdrew her motion
for the issuance of letters testamentary in Branch 61, refiled a
petition for the same purpose with the Regional Trial Court, Makati,
which was docketed as Sp. Proc. No. M-4343 and assigned to
Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of
Branch 65 issued an order, dated June 28, 1996, appointing her as
special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-
4343 and to set aside the appointment of private respondent as
special administrator. He reiterated that he was the sole and full
blooded nephew and nearest of kin of the testator; that he came to
know of the existence of Sp. Proc. No. M-4343 only by accident; that
the probate proceedings in Sp. Proc. No. M-4223 before Branch 61
of the same court was still pending; that private respondent
misdeclared the true worth of the testator's estate; that private
respondent was not fit to be the special administrator of the estate;
and that petitioner should be given letters of administration for the
estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp.
Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to
the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe
had denied on August 26, 1996 petitioner's motion for intervention.
Petitioner brought this matter to the Court of Appeals which, in a
decision4 promulgated on February 13, 1998, upheld the denial of
petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4,
1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on
the ground that there was a pending case involving the Estate of
Decedent Arturo de Santos pending before said court. The order
reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this
Court, transferring this case to this Branch 61 on the ground that this
case is related with a case before this Court, let this case be
returned to Branch 65 with the information that there is no related
case involving the ESTATE OF DECEDENT ARTURO DE SANTOS
pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as
petitioner under Rule 76 of the Rules of Court for the Allowance of
his will during his lifetime docketed as SP. PROC. NO. M-4223

which was already decided on 16 February 1996 and has become
final.
It is noted on records of Case No. M-4223 that after it became final,
herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR
THE ISSUANCE OF LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the hearing, already
ruled that the motion could not be admitted as the subject matter
involves a separate case under Rule 78 of the Rules of Court, and
movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR
INTERVENTION before Case No. M-4223 and this motion was
already DENIED in the order (Branch 61) of 26 August 1996 likewise
for the same grounds that the matter is for a separate case to be
filed under Rule 78 of the Rules of Court and cannot be included in
this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of
cases must be approved by the Presiding Judges of the affected
Branches.
5
Initially, in his decision dated September 23, 1996, Judge Abad
Santos appeared firm in his position that " . . . it would be improper
for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-
4343)," considering that the probate proceedings were commenced
with Branch 61. He thus ordered the transfer of the records back to
the latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings." Thus, in his
Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of
Branch 61 to continue hearing this case notwithstanding the fact that
said branch began the probate proceedings of the estate of the
deceased and must therefore continue to exercise its jurisdiction to
the exclusion of all others, until the entire estate of the testator had
been partitioned and distributed as per Order dated 23 September
1996, this branch (Regional Trial Court Branch 65) shall take
cognizance of the petition if only to expedite the proceedings, and
under the concept that the Regional Trial Court of Makati City is but
one court.
Furnish a copy of this order to the Office of the Chief justice and the
Office of the Court Administrator, of the Supreme Court; the Hon.
Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner;
and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's
motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court. She
then filed a petition for certiorari in the Court of Appeals which, on
February 26, 1997, rendered a decision6 setting aside the trial court's
order on the ground that petitioner had not shown any right or
interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court — Makati,
Branch 61 has lost jurisdiction to proceed with the probate
proceedings upon its issuance of an order allowing the will of Dr.
Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court — Makati,
Branch 65) acquired jurisdiction over the petition for issuance of
letters testamentary filed by (private) respondent.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 3
CODAL PROVISIONS and COMPILATION OF CASES
3. Whether or not the petitioner, being a creditor of the late Dr.
Arturo de Santos, has a right to intervene and oppose the petition for
issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in
filing her petition for issuance of letters testamentary with the
Regional Trial Court — Makati, Branch 65 knowing fully well that the
probate proceedings involving the same restate estate of the
decedent is still pending with the Regional Trial Court — Makati,
Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61
of RTC-Makati did not terminate upon the issuance of the order
allowing the will of Dr. De Santos. Citing the cases of Santiesteban
v. Santiesteban7 and Tagle v. Manalo,8 he argues that the
proceedings must continue until the estate is fully distributed to the
lawful heirs, devisees, and legatees of the testator, pursuant to Rule
73, §1 of the Rules of Court. Consequently, petitioner contends that
Branch 65 could not lawfully act upon private respondent's petition
for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of
the court is limited to ascertaining the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.9
Ordinarily, probate proceedings are instituted only after the death of
the testator, so much so that, after approving and allowing the will,
the court proceeds to issue letters testamentary and settle the estate
of the testator. The cases cited by petitioner are of such nature. In
fact, in most jurisdictions, courts cannot entertain a petition for
probate of the will of a living testator under the principle of
ambulatory nature of wills.10
However, Art. 838 of the Civil Code authorizes the filing of a petition
for probate of the will filed by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal
property unless it is proved and allowed in accordance with the
Rules of Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of wills
after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court
as may be necessary for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to
its due execution.
Rule 76, §1 likewise provides:
Sec. 1. Who may petition for the allowance of will. — Any executor,
devisee, or legatee named in a will, or any other person interested in
the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition in the court for
the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of
testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the
testamentary capacity of the testator or the formalities adopted in the
execution of wills. There are relatively few cases concerning the
intrinsic validity of testamentary dispositions. It is far easier for the
courts to determine the mental condition of a testator during his
lifetime than after his death. Fraud, intimidation and undue influence
are minimized. Furthermore, if a will does not comply with the
requirements prescribed by law, the same may be corrected at once.
The probate during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is probated during the
lifetime of the testator, the only questions that may remain for the
courts to decide after the testator's death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of course, that
even when the testator himself asks for the allowance of the will, he
may be acting under duress or undue influence, but these are rare
cases.
After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be
allowable on his petition, and if he should die before he has had a
chance to present such petition, the ordinary probate proceeding
after the testator's death would be in order.11
Thus, after the allowance of the will of Dr. De Santos on February
16, 1996, there was nothing else for Branch 61 to do except to issue
a certificate of allowance of the will pursuant to Rule 73, §12 of the
Rules of Court. There is, therefore, no basis for the ruling of Judge
Abad Santos of Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having begun the
probate proceedings of the estate of the deceased, it continues and
shall continue to exercise said jurisdiction to the exclusion of all
others. It should be noted that probate proceedings do not cease
upon the allowance or disallowance of a will but continues up to
such time that the entire estate of the testator had been partitioned
and distributed.
The fact that the will was allowed during the lifetime of the testator
meant merely that the partition and distribution of the estate was to
be suspended until the latter's death. In other words, the petitioner,
instead of filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for the same
purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to
intervene, cites Rule 73, §1 which states:
Where estate of deceased persons settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction
to the exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the decedent,
or of the location of his estate, shall not be contested in a suit or
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 4
CODAL PROVISIONS and COMPILATION OF CASES
proceeding, except in an appeal from that court, in the original case,
or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions
for the settlement of the estate of deceased persons. In Garcia Fule
v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),
specifically the clause "so far as it depends on the place of
residence of the decedent, or of the location of the state," is in reality
a matter of venue, as the caption of the Rule indicates: "Settlement
of Estate of Deceased Persons. Venue and Processes." It could not
have been intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of procedure
dealing merely with procedural matters. Procedure is one thing,
jurisdiction over the subject matter is another. The power or authority
of the court over the subject matter "existed was fixed before
procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in
which the power or authority shall be fully and justly exercised.
There are cases though that if the power is not exercised
conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally.
However, this does not amount to a loss of jurisdiction over the
subject matter. Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may thereby be
rendered defective for lack of something essential to sustain it. The
appearance of this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the jurisdiction of
the court over the subject matter. In plain words, it is just a matter of
method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of
estates with approximate value of over P100,000.00 (outside Metro
Manila) or P200,000.00 (in Metro Manila) belongs to the regional
trial courts under B.P. Blg. 129, as amended. The different branches
comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. 14
It is noteworthy that, although Rule 73, §1 applies insofar as the
venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court from
taking cognizance of the settlement of the estate of the testator after
his death. As held in the leading case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under
the Fourteenth Judicial District, are a coordinate and co-equal
courts, and the totality of which is only one Court of First Instance.
The jurisdiction is vested in the court, not in the judges. And when a
case is filed in one branch, jurisdiction over the case does not attach
to the branch or judge alone, to the exclusion of the other branches.
Trial may be held or proceedings continue by and before another
branch or judge. It is for this reason that Section 57 of the Judiciary
Act expressly grants to the Secretary of Justice, the administrative
right or power to apportion the cases among the different branches,
both for the convenience of the parties and for the coordination of
the work by the different branches of the same court. The
apportionment and distribution of cases does not involve a grant or
limitation of jurisdiction, the jurisdiction attaches and continues to be
vested in the Court of First Instance of the province, and the trials
may be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has
jurisdiction over Sp. Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the
petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor
of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings
before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will
of the decedent Arturo de Santos. Neither is he a compulsory heir of
the latter. As the only and nearest collateral relative of the decedent,
he can inherit from the latter only in case of intestacy. Since the
decedent has left a will which has already been probated and
disposes of all his properties the private respondent can inherit only
if the said will is annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having
been raised for the first time only in his reply to the opposition to his
motion to intervene, and, as far as the records show, not supported
by evidence.
. . . . [T]he opposition must come from one with a direct interest in
the estate or the will, and the private respondent has none.
Moreover, the ground cited in the private respondent's opposition,
that the petitioner has deliberately misdeclared the truth worth and
value of the estate, is not relevant to the question of her competency
to act as executor. Section 2, Rule 76 of the Rules of Court requires
only an allegation of the probable value and character of the
property of the estate. The true value can be determined later on in
the course of the settlement of the estate.16
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition
for administration. — Any person interested in a will may state in
writing the grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them, and the court,
after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an "interested person" is
one who would be benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he
cannot be considered an "heir" of the testator. It is a fundamental
rule of testamentary succession that one who has no compulsory or
forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of his estate provided
he does not contravene the provisions of this Code with regard to
the legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 5
CODAL PROVISIONS and COMPILATION OF CASES
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.18
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor in his
will, it is incumbent upon the Court to respect the desires of the
testator. As we stated in Ozaeta v. Pecson:19
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 a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer
the estate.20 None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum
shopping when she filed the petition for issuance of letters
testamentary (Sp. Proc. No. M-4343) while the probate proceedings
(Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in
the two actions which are founded on the same facts, and a
judgment in either will result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for
probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his will, the
proceedings were terminated.1âwphi1.nêt
On the other hand, the petition for issuance of letters testamentary
was filed by private respondent, as executor of the estate of Dr. De
Santos, for the purpose of securing authority from the Court to
administer the estate and put into effect the will of the testator. The
estate settlement proceedings commenced by the filing of the
petition terminates upon the distribution and delivery of the legacies
and devises to the persons named in the will. Clearly, there is no
identity between the two petitions, nor was the latter filed during the
pendency of the former. There was, consequently, no forum
shopping.
WHEREFORE, the petition is DENIED and the decisions of the
Court of Appeals are hereby AFFIRMED.
SO ORDERED.

NITTSCHER v. NITTSCHER
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160530 November 20, 2007
CYNTHIA V. NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased), ATTY.
ROGELIO P. NOGALES and THE REGIONAL TRIAL COURT OF
MAKATI (Branch 59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated July 31, 2003 and
Resolution2 dated October 21, 2003 of the Court of Appeals in CA-
G.R. CV No. 55330, which affirmed the Order3 dated September 29,
1995 of the Regional Trial Court (RTC), Branch 59, Makati City, in
SP Proc. No. M-2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed with
the RTC of Makati City a petition for the probate of his holographic
will and for the issuance of letters testamentary to herein respondent
Atty. Rogelio P. Nogales.
On September 19, 1991, after hearing and with due notice to the
compulsory heirs, the probate court issued an order allowing the
said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will of the
petitioner-testator Dr. Werner J. Nittscher executed pursuant to the
provision of the second paragraph of Article 838 of the Civil Code of
the Philippines on January 25, 1990 in Manila, Philippines, and
proved in accordance with the provision of Rule 76 of the Revised
Rules of Court is hereby allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty. Nogales
filed a petition for letters testamentary for the administration of the
estate of the deceased. Dr. Nittscher’s surviving spouse, herein
petitioner Cynthia V. Nittscher, moved for the dismissal of the said
petition. However, the court in its September 29, 1995 Order denied
petitioner’s motion to dismiss, and granted respondent’s petition for
the issuance of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is DENIED. The
petition for the issuance of Letters Testamentary, being in order, is
GRANTED.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 6
CODAL PROVISIONS and COMPILATION OF CASES
Section 4, Rule 78 of the Revised Rules of Court, provides "when a
will has been proved and allowed, the court shall issue letters
testamentary thereon to the person named as executor therein, if he
is competent, accepts the trust and gives a bond as required by
these rules." In the case at bar, petitioner Atty. Rogelio P. Nogales of
the R.P. Nogales Law Offices has been named executor under the
Holographic Will of Dr. Werner J. Nittscher. As prayed for, let Letters
Testamentary be issued to Atty. Rogelio P. Nogales, the executor
named in the Will, without a bond.
SO ORDERED.5
Petitioner moved for reconsideration, but her motion was denied for
lack of merit. On May 9, 1996, Atty. Nogales was issued letters
testamentary and was sworn in as executor.
Petitioner appealed to the Court of Appeals alleging that
respondent’s petition for the issuance of letters testamentary should
have been dismissed outright as the RTC had no jurisdiction over
the subject matter and that she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is
hereby DISMISSED and the assailed Order is AFFIRMED in toto.
The court a quo is ordered to proceed with dispatch in the
proceedings below.
SO ORDERED.6
Petitioner’s motion for reconsideration of the aforequoted decision
was denied for lack of merit. Hence, the present petition anchored
on the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT
DISMISSING OUTRIGHT THE PETITION FOR LETTERS …
TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-
94 OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER COURT
[HAS] NO JURISDICTION OVER THE SUBJECT MATTER OF THE
PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE
PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS
INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC WILL
OF DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER WAS
NOT DEPRIVED OF DUE PROCESS OF LAW BY THE LOWER
COURT.7

Petitioner contends that respondent’s petition for the issuance of
letters testamentary lacked a certification against forum-shopping.
She adds that the RTC has no jurisdiction over the subject matter of
this case because Dr. Nittscher was allegedly not a resident of the
Philippines; neither did he leave real properties in the country.
Petitioner claims that the properties listed for disposition in her
husband’s will actually belong to her. She insists she was denied
due process of law because she did not receive by personal service
the notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr. Nittscher did
reside and own real properties in Las Piñas, Metro Manila. He
stresses that petitioner was duly notified of the probate proceedings.
Respondent points out that petitioner even appeared in court to
oppose the petition for the issuance of letters testamentary and that
she also filed a motion to dismiss the said petition. Respondent
maintains that the petition for the issuance of letters testamentary
need not contain a certification against forum-shopping as it is
merely a continuation of the original proceeding for the probate of
the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and Administrative
Circular No. 04-949 of the Court require a certification against forum-
shopping for all initiatory pleadings filed in court. However, in this
case, the petition for the issuance of letters testamentary is not an
initiatory pleading, but a mere continuation of the original petition for
the probate of Dr. Nittscher’s will. Hence, respondent’s failure to
include a certification against forum-shopping in his petition for the
issuance of letters testamentary is not a ground for outright
dismissal of the said petition.
Anent the second issue, Section 1, Rule 73 of the Rules of Court
provides:
SECTION 1. Where estate of deceased persons settled. – If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the
Court of First Instance (now Regional Trial Court) in the
province in which he resides at the time of his death, and if he is
an inhabitant of a foreign country, the Court of First Instance (now
Regional Trial Court) of any province in which he had estate. …
(Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in their
finding that Dr. Nittscher was a resident of Las Piñas, Metro Manila
at the time of his death. Such factual finding, which we find
supported by evidence on record, should no longer be disturbed.
Time and again we have said that reviews on certiorari are limited to
errors of law. Unless there is a showing that the findings of the lower
court are totally devoid of support or are glaringly erroneous, this
Court will not analyze or weigh evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher correctly filed in
the RTC of Makati City, which then covered Las Piñas, Metro
Manila, the petition for the probate of his will and for the issuance of
letters testamentary to respondent.
Regarding the third and fourth issues, we note that Dr. Nittscher
asked for the allowance of his own will. In this connection, Section 4,
Rule 76 of the Rules of Court states:
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 7
CODAL PROVISIONS and COMPILATION OF CASES
SEC. 4. Heirs, devisees, legatees, and executors to be notified by
mail or personally. – …
If the testator asks for the allowance of his own will, notice shall be
sent only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr. Nittscher
had no child, and Dr. Nittscher’s children from his previous marriage
were all duly notified, by registered mail, of the probate proceedings.
Petitioner even appeared in court to oppose respondent’s petition for
the issuance of letters testamentary and she also filed a motion to
dismiss the said petition. She likewise filed a motion for
reconsideration of the issuance of the letters testamentary and of the
denial of her motion to dismiss. We are convinced petitioner was
accorded every opportunity to defend her cause. Therefore,
petitioner’s allegation that she was denied due process in the
probate proceedings is without basis.
As a final word, petitioner should realize that the allowance of her
husband’s will is conclusive only as to its due execution. 11 The
authority of the probate court is limited to ascertaining whether the
testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law.12 Thus, petitioner’s claim of
title to the properties forming part of her husband’s estate should be
settled in an ordinary action before the regular courts.
WHEREFORE, the petition is DENIED for lack of merit. The assailed
Decision dated July 31, 2003 and Resolution dated October 21,
2003 of the Court of Appeals in CA-G.R. CV No. 55330, which
affirmed the Order dated September 29, 1995 of the Regional Trial
Court, Branch 59, Makati City, in SP Proc. No. M-2330
are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
LETTERS OF ADMINISTRATION WITH A WILL ANNEXED
LETTERS OF ADMINISTRATION
Rule 79, Section 2. Contents of petition for letters of administration.
— A petition for letters of administration must be filed by an
interested person and must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the names
and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are
prayed.
But no defect in the petition shall render void the issuance of letters
of administration.

POWERS OF EXECUTOR / ADMINISTRATOR
xxx
Rule 87, Section 2. Executor or administrator may bring or defend
actions which survive. — For the recovery or protection of the
property or rights of the deceased, an executor or administrator may
bring or defend, in the right of deceased, actions for causes which
survive.
xxx
Rule 87, Section 4. Executor or administrator may compound with
debtor. — Within the approval of the court, an executor or
administrator may compound with the debtor of the deceased for a
debt due, and may give a discharge of such debt on receiving a just
dividend of the estate of the debtor.
Rule 87, Section 5. Mortgage due estate may be foreclosed. — A
mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right or a mortgage, may be
foreclosed by the executor or administrator.
Rule 87, Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor or
administrator, heir, legatee, creditor or other individual interested in
the estate of the deceased, 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 or discloses the right, title,
interest, or claim of the deceased, the court may cite such suspected
person to appear before it any may examine him on oath on the
matter of such complaint; and if the person so cited refuses to
appear, or to answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt, and may
commit him to prison until he submits to the order of the court. The
interrogatories put any such person, and his answers thereto, shall
be in writing and shall be filed in the clerk's office.
Rule 87, Section 7. Person entrusted with estate compelled to
render account. — The court, on complaint of an executor or
administrator, may cite a person entrusted by an executor or
administrator with any part of the estate of the deceased to appear
before it, and may require such person to render a full account, on
oath, of the money, goods, chattels, bonds, account, or other papers
belonging to such estate as came to his possession in trust for such
executor or administrator, and of his proceedings thereon; and if the
person so cited refuses to appear to render such account, the court
may punish him for contempt as having disobeyed a lawful order of
the court.
Rule 87, Section 8. Embezzlement before letters issued — If a
person, before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or
alienates any of the money, goods, chattels, or effects of such
deceased, such person shall be liable to an action in favor of the
executor or administrator of the estate for double the value of the
property sold, embezzled, or alienated, to be recovered for the
benefit of such estate.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 8
CODAL PROVISIONS and COMPILATION OF CASES
DUTIES OF EXECUTOR / ADMINISTRATOR
Rule 83, Section 1. Inventory and appraisal to be returned within
three months. — Within three (3) months after his appointment every
executor or administrator shall return to the court a true inventory
and appraisal of all real and personal estate of the deceased which
has come into his possession or knowledge. In the appraisement of
such estate, the court may order one or more of the inheritance tax
appraisers to give his or their assistance.
xxx
Rule 84, Section 2. Executor or administrator to keep buildings in
repair. — An executor or administrator shall maintain in tenanble
repair the houses and other structures and fences belonging to the
estate, and deliver the same in such repair to the heirs or devisees
when directed so to do by the court.
Rule 84, Section 3. Executor or administrator to retain whole estate
to pay debts, and to administer estate not willed. — An executor or
administrator shall have the right to the possession and
management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the debts
and the expenses of administration.
xxx
Rule 85, Section 3. When not accountable for debts due estate. —
No executor or administrator shall be accountable for debts due the
deceased which remain uncollected without his fault.
xxx
Rule 85, Section 8. When executor or administrator to render
account. — Every executor or administrator shall render an account
of his administration within one (1) year from the time of receiving
letters testamentary or of administration, unless the court otherwise
directs because of extensions of time for presenting claims against,
or paying the debts of, the estate, or for disposing of the estate; and
he shall render such further accounts as the court may require until
the estate is wholly settled.
xxx
Rule 87, Section 9. Property fraudulently conveyed by deceased
may be recovered. When executor or administrator must bring
action. — When there is a deficiency of assets in the hands of an
executor or administrator for the payment of debts and expenses of
administration, and the deceased in his lifetime had conveyed real or
personal property, or a right or interest therein, or an debt or credit,
with intent to defraud his creditors or to avoid any right, debt, or duty;
or had so conveyed such property, right, interest, debt or credit that
by law the conveyance would be void as against his creditors, and
the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final judgment an
action for the recovery of such property, right, interest, debt, or credit
for the benefit of the creditors; but he shall not be bound to
commence the action unless on application of the creditors of the
deceased, not unless the creditors making the application pay such
part of the costs and expenses, or give security therefor to the
executor or administrator, as the court deems equitable.

ACCOUNTABILITY OF EXECUTOR / ADMINISTRATOR
Rule 85, Section 1. Executor or administrator chargeable with all
estate and income. — Except as otherwise expressly provided in the
following sections, every executor or administrator is chargeable in
his account with the whole of the estate of the deceased which has
come into his possession, at the value of the appraisement
contained in the inventory; with all the interest, profit, and income of
such estate; and with the proceeds of so much of the estate as is
sold by him, at the price at which it was sold.
Rule 85, Section 2. Not to profit by increase or lose by decrease in
value. — No executor or administrator shall profit by the increase, or
suffer loss by the decrease or destruction, without his fault, of any
part of the estate. He must account for the excess when he sells any
part of the estate for more than the appraisement, and if any is sold
for the less than the appraisement, he is not responsible for the loss,
if the sale has justly made. If he settles any claim against the estate
for less than its nominal value, he is entitled to charge in his account
only the amount he actually paid on the settlement.
xxx
Rule 85, Section 4. Accountable for income from realty used by
him. — If the executor or administrator uses or occupies any part of
the real estate himself, he shall account for it as may be agreed
upon between him and the parties interested, or adjusted by the
court with their assent; and if the parties do not agree upon the sum
to be allowed, the same may be ascertained by the court, whose
determination in this respect shall be final.
Rule 85, Section 5. Accountable if he neglects or delays to raise or
pay money. — When an executor or administrator neglects or
unreasonably delays to raise money, by collecting the debts or
selling the real or personal estate of the deceased, or neglects to
pay over the money he has in his hands, and the value of the estate
is thereby lessened or unnecessary cost or interest accrues, or the
persons interested suffer loss, the same shall be deemed waste and
the damage sustained may be charged and allowed against him in
his account, and he shall be liable therefor on his bond.
Rule 85, Section 6. When allowed money paid as cost. — The
amount paid by an executor or administrator for costs awarded
against him shall be allowed in his administration account, unless it
appears that the action or proceeding in which the costs are taxed
was prosecuted or resisted without just cause, and not in good faith.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 9
CODAL PROVISIONS and COMPILATION OF CASES
EXPENSES ALLOWED
Rule 85, Section 6. When allowed money paid as cost. — The
amount paid by an executor or administrator for costs awarded
against him shall be allowed in his administration account, unless it
appears that the action or proceeding in which the costs are taxed
was prosecuted or resisted without just cause, and not in good faith.
Rule 85, Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney. Compensation
provided by will controls unless renounced. — An executor or
administrator shall be allowed the necessary expenses the care,
management, and settlement of the estate, and for his services, four
pesos per day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes into
his possession and is finally disposed of by him in the payment of
debts, expenses, legacies, or distributive shares, or by delivery to
heirs or devisees, of two per centum of the first five thousand pesos
of such value, one per centum of so much of such value as exceeds
five thousand pesos and does not exceed thirty thousand pesos,
one-half per centum of so much of such value as exceed one
hundred thousand pesos. But in any special case, where the estate
is large, and the settlement has been attended with great difficulty,
and has required a high degree of capacity on the part of the
executor or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be re-examined on
appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the court
according to the services actually rendered by them respectively.
When the executors or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him.
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full
satisfaction for his services unless by a written instrument filed in the
court he renounces all claim to the compensation provided by the
will.
xxx
Rule 83, Section 3. Allowance to widow and family. — The widow
and minor or incapacitated children of a deceased person, during
the settlement of the estate, shall receive therefrom, under the
direction of the court, such allowance as are provided by law.
ARTICLE 133, FAMILY CODE
Art. 133, Family Code. From the common mass of property support
shall be given to the surviving spouse and to the children during the
liquidation of the inventoried property and until what belongs to them
is delivered; but from this shall be deducted that amount received for
support which exceeds the fruits or rents pertaining to them. (188a)

SANTERO v. CFI OF CAVITE
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-61700 September 14, 1987
PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE
SANTERO, petitioners,
vs.
HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA
DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed
SANTERO, and REYNALDO EVARISTO, in his capacity as
Administrator of the Intestate Estate of PABLO
SANTERO, respondents.
PARAS, J.:
This is a Petition for certiorari which questions the order of the
respondent court granting the Motion for Allowance filed by private
respondents. Said order reads as follows:
Acting on the Motion For Allowance dated June 30, 1982 filed by
Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero, thru
their guardian, Anselma Diaz, the Opposition thereto dated July 8,
1982 filed by the oppositors, the Reply to Opposition dated July 12,
1982 filed by movant Anselma Diaz and the Rejoinder dated July 26,
1982 filed by the oppositors, the Court was constrained to examine
the Motion For Allowance filed by the herein movant last year
wherein the ground cited was for support which included educational
expenses, clothing and medical necessities, which was granted and
said minors were given an allowance prayed for in their motion.
In the Motion For Allowance in question guardian-movant Anselma
Diaz only followed the precedent of the Court which granted a
similar motion last year to be spent for the school expenses of her
wards. In their opposition the oppositors contend that the wards for
whom allowance is sought are no longer schooling and have
attained majority age so that they are no longer under guardianship.
They likewise allege that the administrator does not have sufficient
funds to cover the said allowance because whatever funds are in the
hands of the administrator, they constitute funds held in trust for the
benefit of whoever will be adjudged as owners of the Kawit property
from which said administrator derives the only income of the
intestate estate of Pablo Santero, et al.
In the Reply filed by the guardian-movant, she admitted some of her
children are of age and not enrolled for the first semester due to lack
of funds but will be enrolled as soon as they are given the requested
allowances. She cited Article 290 of the Civil Code providing that:
Support is everything that is indispensable for substance, dwelling,
clothing and medical attendance, according to the social position of
the family.
Support also includes the education of the person entitled to be
supported until he completes his education or training for some trade
or vocation, even beyond the age of majority.'
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 10
CODAL PROVISIONS and COMPILATION OF CASES
citing also Section 3 of Rule 83 of the Rules of Court which provides:
Allowance to widow and family. The widow and minor or
incapacitated children of a deceased person, during the settlement
of the estate, shall receive therefrom, under the direction of the
Court, such allowance as provided by law.'
From the foregoing discussion alone, the Court cannot deviate from
its duty to give the allowance sought by the wards, the fact that they
need further education which should have been provided to them if
their deceased father were alive.
On the allegation that the funds from which the allowance would be
derived are trust funds, the Court, time and again had emphasized
that the estate of the Santeros is quite big and the amount to be
released for allowances is indeed insignificant and which can easily
be replaced from its general fund if the so-called trust fund is
adjudicated to the oppositors.
WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed
Santero are hereby granted an allowance of two thousand
(P2,000.00) pesos each for tuition fees, clothing materials and
subsistence out of any available funds in the hands of the
administrator who is ordered to reimburse to them the said amount
after this order shall have become final to enable the oppositors to
file their appeal by certiorari if they so desire within the reglementary
period.
SO ORDERED.
Bacoor, Cavite, July 28, 1982.
ILDEFONSO M. BLEZA
Executive Judge
(pp. 35-36, Rollo)
It appears from the records that petitioners Princesita Santero-
Morales, Federico Santero and Winy Santero are the children
begotten by the late Pablo Santero with Felixberta Pacursa while
private respondents Victor, Rodrigo, Anselmina and Miguel all
surnamed Santero are four of the seven children begotten by the
same Pablo Santero with Anselma Diaz. Both sets of children are
the natural children of the late Pablo Santero since neither of their
mothers, was married to their father Pablo. Pablo Santero in turn,
who died on November 30, 1973 was the only legitimate son of
Pascual Santero who died in 1970 and Simona Pamuti Vda. de
Santero who died in 1976.
Meanwhile before We could act on the instant petition private
respondents filed another Motion for Allowance dated March 25,
1985 with the respondent court to include Juanita, Estelita and
Pedrito all surnamed Santero as children of the late Pablo Santero
with Anselma Diaz praying that an order be granted directing the
administrator Reynaldo C. Evaristo, to deliver the sum of P6,000.00
to each of the seven (7) children of Anselma Diaz as their allowance
from the estate of Pablo Santero. The respondent Court granted the
motion of the private respondents but oppositors (petitioners herein)
asked the court to reconsider said Order.
On September 10, 1985, an Amended Order was issued by
respondent Court directing Anselma Diaz to submit her clarification
or explanation as to the additional three (3) children of Anselma Diaz

included in the motion. In compliance therewith Anselma Diaz filed
her "Clarification" stating among others that in her previous motions,
only the last four minor children as represented by the mother,
Anselma Diaz were included in the motion for support and her first
three (3) children who were then of age should have been included
since all her children have the right to receive allowance as advance
payment of their shares in the inheritance of Pablo Santero under
Art. 188, of the New Civil Code.
On October 15, 1985, petitioners herein filed their Motion
to Admit Supplemental Petition opposing the inclusion of three (3)
more heirs. We denied that "Motion for Extension of Time to file their
Supplemental Petition" as per Our Resolution dated October 23,
1985.
On November 11, 1985, another Order was issued by the
respondent court directing the administrator of the estate to get back
the allowance of the three additional recipients or children of
Anselma Diaz apparently based on the oppositors' (petitioners
herein) "Urgent Motion to Direct the Administrator to Withhold
Disbursement of Allowance to the Movants."
The issues now being raised in this present Petition are:
1. Whether or not respondent court acted with abuse of discretion
amounting to lack of jurisdiction in granting the allowance to the
respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each
despite the fact that all of them are not minors and all are gainfully
employed with the exception of Miguel.
2. Whether or not respondent Court acted with abuse of discretion in
granting the allowance based on the allegations of the said
respondents that the abovenamed wards are still schooling and they
are in actual need of money to defray their school expenses for
1982-83 when the truth is that they are no longer schooling.
3. Whether or not respondent Court acted with abuse of discretion in
granting the motion for allowance without conducting a hearing
thereon, to determine the truth of allegations of the private
respondents.
Petitioners argue that private respondents are not entitled to any
allowance since they have already attained majority age, two are
gainfully employed and one is married as provided for under Sec. 3
Rule 83, of the Rules of Court. Petitioners also allege that there was
misrepresentation on the part of the guardian in asking for allowance
for tuition fees, books and other school materials and other
miscellaneous expenses for school term 1982-83 because these
wards have already attained majority age so that they are no longer
under guardianship. They further allege that the administrator of the
estate of Pablo Santero does not have sufficient funds to cover said
allowance because whatever funds are in the hands of the
administrator constitute funds held in trust for the benefit of whoever
will be adjudged as owners of the Kawit properties from where these
funds now held by the administrator are derived.
In this connection, the question of whether the private respondents
are entitled to allowance or not concerns only the intestate estate of
the late Pablo Santero and not the intestate estates of Pascual
Santero and Simona Pamuti, parents of their late legitimate son
Pablo Santero. The reason for this is Art. 992 of the New Civil Code
which states that "An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child." The question of whether or not
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 11
CODAL PROVISIONS and COMPILATION OF CASES
the petitioners and private respondents are entitled to inherit by right
of representation from their grandparents more particularly from
Simona Pamuti was settled by Us in the related case of "Anselma
Diaz, et al. vs. Felisa Pamuti-Jardin" (G.R. No. 66574-R) wherein
We held that in view of the barrier present in said Art. 992,
petitioners and private respondents are excluded from the intestate
estate of Simona Pamuti Vda. de Santero.
The present petition obviously lacks merit.
The controlling provision of law is not Rule 83, Sec. 3 of the New
Rules of Court but Arts. 290 and 188 of the Civil Code reading as
follows:
Art. 290. Support is everything that is indispensable for sustenance,
dwelling, clothing and medical attendance, according tothe social
position of the family.
Support also includes the education of the person entitled to be
supported until he completes his education or training for some
profession, trade or vocation, even beyond the age of majority.
Art. 188. From the common mass of property support shall be given
to the surviving spouse and to the children during the liquidation of
the inventoried property and until what belongs to them is delivered;
but from this shall be deducted that amount received for support
which exceeds the fruits or rents pertaining to them.
The fact that private respondents are of age, gainfully employed, or
married is of no moment and should not be regarded as the
determining factor of their right to allowance under Art. 188. While
the Rules of Court limit allowances to the widow and minor or
incapacitated children of the deceased, the New Civil Code gives the
surviving spouse and his/her children without distinction. Hence, the
private respondents Victor, Rodrigo, Anselmina and Miguel all
surnamed Santero are entitled to allowances as advances from their
shares in the inheritance from their father Pablo Santero. Since the
provision of the Civil Code, a substantive law, gives the surviving
spouse and to the children the right to receive support during the
liquidation of the estate of the deceased, such right cannot be
impaired by Rule 83 Sec. 3 of the Rules of Court which is a
procedural rule. Be it noted however that with respect to "spouse,"
the same must be the "legitimate spouse" (not common-law spouses
who are the mothers of the children here).
It is not true that the Motion for Allowance was granted by
respondent Court without hearing. The record shows that the
"Motion for Allowance" dated June 30, 1982 contains a Notice of
Hearing (p. 2, Annex "A") addressed to the lawyers for the
petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in
the morning. Apparently a copy of said motion was duly received by
the lawyer, Atty. Beltran as he filed an opposition thereto on the
same date of hearing of the motion. Furthermore even the instant
petition admits that the wards, (petitioners and private respondents
as represented by their respective guardians) "have been granted
allowances for school expenses for about 8 years now." The
respondent court in granting the motion for allowance merely
"followed the precedent of the court which granted a similar motion
last year." (Annex "F") However in previous years (1979-1981) the
"wards" (petitioners and private respondents) only received
P1,500.00 each depending upon the availability of funds as granted
by the court in several orders. (Annex 1 to Annex 4).

WHEREFORE, in the light of the aforementioned circumstances, the
instant Petition is hereby DISMISSED and the assailed judgment is
AFFIRMED.
SO ORDERED.
RUIZ v. CA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 118671 January 29, 1996
THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ,
Executor, petitioner,
vs.
THE COURT OF APPEALS (Former Special Sixth Division),
MARIA PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ,
CANDICE ALBERTINE RUIZ, MARIA ANGELINE RUIZ and THE
PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF
PASIG, respondents.
DECISION
PUNO, J.:
This petition for review on certiorari seeks to annul and set aside the
decision dated November 10, 1994 and the resolution dated January
5, 1995 of the Court of Appeals in CA-G.R. SP No. 33045.
The facts show that on June 27, 1987, Hilario M. Ruiz1 executed a
holographic will naming as his heirs his only son, Edmond Ruiz, his
adopted daughter, private respondent Maria Pilar Ruiz Montes, and
his three granddaughters, private respondents Maria Cathryn,
Candice Albertine and Maria Angeline, all children of Edmond Ruiz.
The testator bequeathed to his heirs substantial cash, personal and
real properties and named Edmond Ruiz executor of his estate. 2
On April 12, 1988, Hilario Ruiz died. Immediately thereafter, the
cash component of his estate was distributed among Edmond Ruiz
and private respondents in accordance with the decedent's will. For
unbeknown reasons, Edmond, the named executor, did not take any
action for the probate of his father's holographic will.
On June 29, 1992, four years after the testator's death, it was private
respondent Maria Pilar Ruiz Montes who filed before the Regional
Trial Court, Branch 156, Pasig, a petition for the probate and
approval of Hilario Ruiz's will and for the issuance of letters
testamentary to Edmond Ruiz,3 Surprisingly, Edmond opposed the
petition on the ground that the will was executed under undue
influence.
On November 2, 1992, one of the properties of the estate — the
house and lot at No. 2 Oliva Street, Valle Verde IV, Pasig which the
testator bequeathed to Maria Cathryn, Candice Albertine and Maria
Angeline4 — was leased out by Edmond Ruiz to third persons.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 12
CODAL PROVISIONS and COMPILATION OF CASES
On January 19, 1993, the probate court ordered Edmond to deposit
with the Branch Clerk of Court the rental deposit and payments
totalling P540,000.00 representing the one-year lease of the Valle
Verde property. In compliance, on January 25, 1993, Edmond turned
over the amount of P348,583.56, representing the balance of the
rent after deducting P191,416.14 for repair and maintenance
expenses on the estate.5
In March 1993, Edmond moved for the release of P50,000.00 to pay
the real estate taxes on the real properties of the estate. The
probate court approved the release of P7,722.00.6
On May 14, 1993, Edmond withdrew his opposition to the probate of
the will. Consequently, the probate court, on May 18, 1993, admitted
the will to probate and ordered the issuance of letters testamentary
to Edmond conditioned upon the filing of a bond in the amount of
P50,000.00. The letters testamentary were issued on June 23, 1993.
On July 28, 1993, petitioner Testate Estate of Hilario Ruiz, with
Edmond Ruiz as executor, filed an "Ex-Parte Motion for Release of
Funds." It prayed for the release of the rent payments deposited with
the Branch Clerk of Court. Respondent Montes opposed the motion
and concurrently filed a "Motion for Release of Funds to Certain
Heirs" and "Motion for Issuance of Certificate of Allowance of
Probate Will." Montes prayed for the release of the said rent
payments to Maria Cathryn, Candice Albertine and Maria Angeline
and for the distribution of the testator's properties, specifically the
Valle Verde property and the Blue Ridge apartments, in accordance
with the provisions of the holographic will.
On August 26, 1993, the probate court denied petitioner's motion for
release of funds but granted respondent Montes' motion in view of
petitioner's lack of opposition. It thus ordered the release of the rent
payments to the decedent's three granddaughters. It further ordered
the delivery of the titles to and possession of the properties
bequeathed to the three granddaughters and respondent Montes
upon the filing of a bond of P50,000.00.
Petitioner moved for reconsideration alleging that he actually filed
his opposition to respondent Montes's motion for release of rent
payments which opposition the court failed to consider. Petitioner
likewise reiterated his previous motion for release of funds.
On November 23, 1993, petitioner, through counsel, manifested that
he was withdrawing his motion for release of funds in view of the fact
that the lease contract over the Valle Verde property had been
renewed for another year.7
Despite petitioner's manifestation, the probate court, on December
22, 1993, ordered the release of the funds to Edmond but only "such
amount as may be necessary to cover the expenses of
administration and allowances for support" of the testator's three
granddaughters subject to collation and deductible from their share
in the inheritance. The court, however, held in abeyance the release
of the titles to respondent Montes and the three granddaughters until
the lapse of six months from the date of first publication of the notice
to creditors.8 The court stated thus:
xxx xxx xxx
After consideration of the arguments set forth thereon by the parties
the court resolves to allow Administrator Edmond M. Ruiz to take
possession of the rental payments deposited with the Clerk of Court,
Pasig Regional Trial Court, but only such amount as may
be necessary to cover the expenses of administration and

allowances for support of Maria Cathryn Veronique, Candice
Albertine and Maria Angeli, which are subject to collation and
deductible from the share in the inheritance of said heirs and insofar
as they exceed the fruits or rents pertaining to them.
As to the release of the titles bequeathed to petitioner Maria Pilar
Ruiz-Montes and the above-named heirs, the same is hereby
reconsidered and held in abeyance until the lapse of six (6) months
from the date of first publication of Notice to Creditors.
WHEREFORE, Administrator Edmond M. Ruiz is hereby ordered to
submit an accounting of the expenses necessary for administration
including provisions for the support Of Maria Cathryn Veronique
Ruiz, Candice Albertine Ruiz and Maria Angeli Ruiz before the
amount required can be withdrawn and cause the publication of
the notice to creditors with reasonable dispatch.9
Petitioner assailed this order before the Court of Appeals. Finding no
grave abuse of discretion on the part of respondent judge, the
appellate court dismissed the petition and sustained the probate
court's order in a decision dated November 10, 199410 and a
resolution dated January 5, 1995.11
Hence, this petition.
Petitioner claims that:
THE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN AFFIRMING AND CONFIRMING
THE ORDER OF RESPONDENT REGIONAL TRIAL COURT OF
PASIG, BRANCH 156, DATED DECEMBER 22, 1993, WHICH
WHEN GIVEN DUE COURSE AND IS EFFECTED WOULD: (1)
DISALLOW THE EXECUTOR/ADMINISTRATOR OF THE ESTATE
OF THE LATE HILARIO M. RUIZ TO TAKE POSSESSION OF ALL
THE REAL AND PERSONAL PROPERTIES OF THE ESTATE; (2)
GRANT SUPPORT, DURING THE PENDENCY OF THE
SETTLEMENT OF AN ESTATE, TO CERTAIN PERSONS NOT
ENTITLED THERETO; AND (3) PREMATURELY PARTITION AND
DISTRIBUTE THE ESTATE PURSUANT TO THE PROVISIONS OF
THE HOLOGRAPHIC WILL EVEN BEFORE ITS INTRINSIC
VALIDITY HAS BEEN DETERMINED, AND DESPITE THE
EXISTENCE OF UNPAID DEBTS AND OBLIGATIONS OF THE
ESTATE.12
The issue for resolution is whether the probate court, after admitting
the will to probate but before payment of the estate's debts and
obligations, has the authority: (1) to grant an allowance from the
funds of the estate for the support of the testator's grandchildren; (2)
to order the release of the titles to certain heirs; and (3) to grant
possession of all properties of the estate to the executor of the will.
On the matter of allowance, Section 3 of Rule 83 of the Revised
Rules of Court provides:
Sec. 3. Allowance to widow and family. — The widow and minor or
incapacitated children of a deceased person, during the settlement
of the estate, shall receive therefrom under the direction of the court,
such allowance as are provided by law.
Petitioner alleges that this provision only gives the widow and the
minor or incapacitated children of the deceased the right to receive
allowances for support during the settlement of estate proceedings.
He contends that the testator's three granddaughters do not qualify
for an allowance because they are not incapacitated and are no
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 13
CODAL PROVISIONS and COMPILATION OF CASES
longer minors but of legal age, married and gainfully employed. In
addition, the provision expressly states "children" of the deceased
which excludes the latter's grandchildren.
It is settled that allowances for support under Section 3 of Rule 83
should not be limited to the "minor or incapacitated" children of the
deceased. Article 18813 of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's death, provides
that during the liquidation of the conjugal partnership, the
deceased's legitimate spouse and children, regardless of their age,
civil status or gainful employment, are entitled to provisional support
from the funds of the estate.14 The law is rooted on the fact that the
right and duty to support, especially the right to education, subsist
even beyond the age of majority.15
Be that as it may, grandchildren are not entitled to provisional
support from the funds of the decedent's estate. The law clearly
limits the allowance to "widow and children" and does not extend it
to the deceased's grandchildren, regardless of their minority or
incapacity.16 It was error, therefore, for the appellate court to sustain
the probate court's order granting an allowance to the grandchildren
of the testator pending settlement of his estate.
Respondent courts also erred when they ordered the release of the
titles of the bequeathed properties to private respondents six months
after the date of first publication of notice to creditors. An order
releasing titles to properties of the estate amounts to an advance
distribution of the estate which is allowed only under the following
conditions:
Sec. 2. Advance distribution in special proceedings. —
Nothwithstanding a pending controversy or appeal in proceedings to
settle the estate of a decedent, the court may, in its discretion and
upon such terms as it may deem proper and just, permit that such
part of the estate as may not be affected by the controversy or
appeal be distributed among the heirs or legatees, upon compliance
with the conditions set forth in Rule 90 of these Rules.17
And Rule 90 provides that:
Sec. 1. When order for distribution of residue made. — When the
debts, funeral charges, and expenses of administration the
allowance to the widow, and inheritance tax if any, chargeable to the
estate in accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a person interested
in the estate, and after hearing upon notice shall assign the residue
of the estate to the persons entitled to the same, naming them and
the proportions or parts, to which each is entitled, and such persons
may demand and recover their respective shares from the executor
or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are
the lawful heirs of the deceased person or as to the distributive
shares to which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above-mentioned has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations within such
time as the court directs.18
In settlement of estate proceedings, the distribution of the estate
properties can only be made: (1) after all the debts, funeral charges,
expenses of administration, allowance to the widow, and estate tax
have been paid; or (2) before payment of said obligations only if the

distributees or any of them gives a bond in a sum fixed by the court
conditioned upon the payment of said obligations within such time as
the court directs, or when provision is made to meet those
obligations.19
In the case at bar, the probate court ordered the release of the titles
to the Valle Verde property and the Blue Ridge apartments to the
private respondents after the lapse of six months from the date of
first publication of the notice to creditors. The questioned order
speaks of "notice" to creditors, not payment of debts and obligations.
Hilario Ruiz allegedly left no debts when he died but the taxes on his
estate had not hitherto been paid, much less ascertained. The estate
tax is one of those obligations that must be paid before distribution
of the estate. If not yet paid, the rule requires that the distributees
post a bond or make such provisions as to meet the said tax
obligation in proportion to their respective shares in the
inheritance.20 Notably, at the time the order was issued the
properties of the estate had not yet been inventoried and appraised.
It was also too early in the day for the probate court to order the
release of the titles six months after admitting the will to probate.
The probate of a will is conclusive as to its due execution and
extrinsic validity21 and settles only the question of whether the
testator, being of sound mind, freely executed it in accordance with
the formalities prescribed by law.22 Questions as to the intrinsic
validity and efficacy of the provisions of the will, the legality of any
devise or legacy may be raised even after the will has been
authenticated.23
The intrinsic validity of Hilario's holographic will was controverted by
petitioner before the probate court in his Reply to Montes' Opposition
to his motion for release of funds24 and his motion for reconsideration
of the August 26, 1993 order of the said court. 25 Therein, petitioner
assailed the distributive shares of the devisees and legatees
inasmuch as his father's will included the estate of his mother and
allegedly impaired his legitime as an intestate heir of his mother. The
Rules provide that if there is a controversy as to who are the lawful
heirs of the decedent and their distributive shares in his estate, the
probate court shall proceed to hear and decide the same as in
ordinary cases.26
Still and all, petitioner cannot correctly claim that the assailed order
deprived him of his right to take possession of all the real and
personal properties of the estate. The right of an executor or
administrator to the possession and management of the real and
personal properties of the deceased is not absolute and can only be
exercised "so long as it is necessary for the payment of the debts
and expenses of administration,"27 Section 3 of Rule 84 of the
Revised Rules of Court explicitly provides:
Sec. 3. Executor or administrator to retain whole estate to pay debts,
and to administer estate not willed. — An executor or administrator
shall have the right to the possession and management of the real
as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and expenses for
administration.28
When petitioner moved for further release of the funds deposited
with the clerk of court, he had been previously granted by the
probate court certain amounts for repair and maintenance expenses
on the properties of the estate, and payment of the real estate taxes
thereon. But petitioner moved again for the release of additional
funds for the same reasons he previously cited. It was correct for the
probate court to require him to submit an accounting of the
necessary expenses for administration before releasing any further
money in his favor.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 14
CODAL PROVISIONS and COMPILATION OF CASES
It was relevantly noted by the probate court that petitioner had
deposited with it only a portion of the one-year rental income from
the Valle Verde property. Petitioner did not deposit its succeeding
rents after renewal of the lease.29Neither did he render an
accounting of such funds.
Petitioner must be reminded that his right of ownership over the
properties of his father is merely inchoate as long as the estate has
not been fully settled and partitioned.30 As executor, he is a mere
trustee of his father's estate. The funds of the estate in his hands are
trust funds and he is held to the duties and responsibilities of a
trustee of the highest order.31 He cannot unilaterally assign to himself
and possess all his parents' properties and the fruits thereof without
first submitting an inventory and appraisal of all real and personal
properties of the deceased, rendering a true account of his
administration, the expenses of administration, the amount of the
obligations and estate tax, all of which are subject to a determination
by the court as to their veracity, propriety and justness.32
IN VIEW WHEREOF, the decision and resolution of the Court of
Appeals in CA-G.R. SP No. 33045 affirming the order dated
December 22, 1993 of the Regional Trial Court, Branch 156, Pasig
in SP Proc. No. 10259 are affirmed with the modification that those
portions of the order granting an allowance to the testator's
grandchildren and ordering the release of the titles to the private
respondents upon notice to creditors are annulled and set aside.
Respondent judge is ordered to proceed with dispatch in the
proceedings below.
SO ORDERED.
FEES ALLOWED
Rule 85, Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney. Compensation
provided by will controls unless renounced. — An executor or
administrator shall be allowed the necessary expenses the care,
management, and settlement of the estate, and for his services, four
pesos per day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes into
his possession and is finally disposed of by him in the payment of
debts, expenses, legacies, or distributive shares, or by delivery to
heirs or devisees, of two per centum of the first five thousand pesos
of such value, one per centum of so much of such value as exceeds
five thousand pesos and does not exceed thirty thousand pesos,
one-half per centum of so much of such value as exceed one
hundred thousand pesos. But in any special case, where the estate
is large, and the settlement has been attended with great difficulty,
and has required a high degree of capacity on the part of the
executor or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be re-examined on
appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the court
according to the services actually rendered by them respectively.
When the executors or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him.
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full

satisfaction for his services unless by a written instrument filed in the
court he renounces all claim to the compensation provided by the
will.
LACSON v. REYES
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 86250 February 26, 1990
ALBERTO F. LACSON, EDITHA F. LACSON, ROMEO F. LACSON
and ZENA F. VELASCO, petitioners,
vs.
HON. LUIS R. REYES, in his capacity as presiding judge of
Branch 22 of the Regional Trial Court of Cavite, Branch 22,
and/or Multiple Sala, Imus, Cavite, and EPHRAIM J.
SERQUINA, respondents.
Victor H. Volfango for petitioners.
Ephraim J. Serquina for and his own behalf as respondent.
SARMIENTO, J.:
On August 26, 1987, the private respondent, Ephraim Serquina,
petitioned the respondent court for the probate of the last will and
testament of Carmelita Farlin. His petition was docketed as Sp.
Proc. No. 127-87 of the respondent court, entitled "In Re Testate
Estate of Carmelita S. Farlin, Ephraim J. Serquina, Petitioner." He
also petitioned the court in his capacity as counsel for the heirs, the
herein petitioners, and as executor under the will.
The petition was not opposed and hence, on November 17, 1987,
the respondent court issued a "certificate of allowance," 1 the
dispositive part of which reads as follows:
WHEREFORE, upon the foregoing, the Court hereby renders
certification that subject will and testament is accordingly allowed in
accordance with Sec. 13 of Rule 76 of the Rules of Court.
SO ORDERED. 2
On March 14, 1988, Atty. Ephraim Serquina filed a "motion for
attorney's fees" 3 against the petitioners, alleging that the heirs had
agreed to pay, as and for his legal services rendered, the sum of
P68,000.00.
Thereafter summonses were served upon the heirs "as if it were a
complaint against said heirs" 4 directing them to answer the motion.
Thereafter, the heirs filed their answer and denied the claim for
P68,000.00 alleging that the sum agreed upon was only P7,000.00,
a sum they had allegedly already paid.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 15
CODAL PROVISIONS and COMPILATION OF CASES
After pre-trial, the respondent court rendered judgment and disposed
as follows:
In the light of the foregoing, considering the extent of the legal
services rendered to the clients, the value of the properties gained
by the clients out of said services, the petition for attorney's fees is
granted. Judgment is hereby rendered directing the respondent heirs
to pay their lawyer the sum of P65,000.00 as true and reasonable
attorney's fees which shall be a lien on the subject properties. Cost
against the respondent.
SO ORDERED. 5
On October 21, 1988, eleven days after the heirs received a copy of
the decision, 6 the latter filed a notice of appeal.
On November 7, 1988, the respondent court issued an order
directing the heirs to amend their notice of appeal. 7
On October 27, 1988, the respondent court issued an order "noting"
the notice on appeal "appellants [the heirs] having failed to correct or
complete the same within the reglementary period to effect an
appeal." 8
On November 24, 1988, the respondent court issued yet another
order denying the notice of appeal for failure of the heirs to file a
record on appeal. 9
Thereafter, Atty. Serquina moved for execution.
On December 5, 1988, the respondent court issued an order
granting execution. 10
The petitioners submit that the decision, dated October 26, 1988,
and the orders, dated October 27, 1988, November 24, 1988, and
December 5, 1988, respectively, are nun and void for the following
reasons: (1) the respondent court never acquired jurisdiction over
the "motion for attorney's fees" for failure on the part of the movant,
Ephraim Serquina, to pay docket fees; (2) the respondent court
gravely abused its discretion in denying the heirs' notice of appeal
for their failure to file a record on appeal; and (3) the respondent
court also gravely abused its discretion in awarding attorney's fees
contrary to the provisions of Section 7, of Rule 85, of the Rules of
Court.
Atty. Serquina now defends the challenged acts of the respondent
court: (1) his motion was a mere incident to the main proceedings;
(2) the respondent court rightly denied the notice of appeal in
question for failure of the heirs to submit a record on appeal; and (3)
in collecting attorney's fees, he was not acting as executor of
Carmelita Farlin's last will and testament because no letters
testamentary had in fact been issued.
We take these up seriatim.
I.
Anent docket fees, it has been held 11 that the court acquires
jurisdiction over any case only upon payment of the prescribed
docket fee.

Although the rule has since been tempered, 12 that is, there must be
a clear showing that the party had intended to evade payment and to
cheat the courts, it does not excuse him from paying docket fees as
soon as it becomes apparent that docket fees are indeed payable.
In the case at bar, the "motion for attorney's fees" was clearly in the
nature of an action commenced by a lawyer against his clients for
attorney's fees. The very decision of the court states:
This case is an out-growth from Sp. Proc. No. 127-87 of same Court
which was long decided (sic). It resulted from the filing of a petition
for attorney's fees by the lawyer of the petitioner's heirs in the case
against the latter.
Upon the filing of the petition for attorney's fees, the heir-
respondents (sic) were accordingly summoned to answer the
petition as if it were a complaint against said heirs who retained the
petitioner as their lawyer in the said case.13
In that event, the parties should have known, the respondent court in
particular, that docket fees should have been priorly paid before the
court could lawfully act on the case, and decide it.
It may be true that the claim for attorney's fees was but an incident in
the main case, still, it is not an escape valve from the payment of
docket fees because as in all actions, whether separate or as an
offshoot of a pending proceeding, the payment of docket fees is
mandatory.
Assuming, therefore, ex gratia argumenti, that Atty. Serquina's
demand for attorney's fees in the sum of P68,000.00 is valid, he,
Atty. Serquina, should have paid the fees in question before the
respondent court could validly try his "motion".
II.
With respect to the second issue, it has been held that in appeals
arising from an incident in a special proceeding, a record on appeal
is necessary, otherwise, the appeal faces a dismissal. 14 It has
likewise been held, however, that in the interest of justice, an
appeal, brought without a record on appeal, may be reinstated under
exceptional circumstances. Thus:
xxx xxx xxx
It is noted, however, that the question presented in this case is one
of first impression; that the petitioner acted in honest, if mistaken,
interpretation of the applicable law; that the probate court itself
believed that the record on appeal was unnecessary; and that the
private respondent herself apparently thought so, too, for she did not
move to dismiss the appeal and instead impliedly recognized its
validity by filing the appellee's brief.
In view of these circumstances, and in the interest of justice, the
Court feels that the petitioner should be given an opportunity to
comply with the above-discussed rules by submitting the required
record on appeal as a condition for the revival of the appeal. The
issue raised in his appeal may then be fully discussed and, in the
light of the briefs already filed by the parties, resolved on the merits
by the respondent court. 15
In the instant case, the Court notes the apparent impression by the
parties at the outset, that a record on appeal was unnecessary, as
evidenced by: (1) the very holding of the respondent court that "[i]t is
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 16
CODAL PROVISIONS and COMPILATION OF CASES
now easy to appeal as there is no more need for a record on appeal
. . . [b]y merely filing a notice of appeal, the appellant can already
institute his appeal . . . ;" 16 (2) in its order to amend notice of appeal,
it did not require the appellants to submit a record on appeal; and (3)
Atty. Serquina interposed no objection to the appeal on that ground.
In any event, since we are annulling the decision appealed from, the
matter is a dead issue.
III.
As we have indicated, we are granting certiorari and are annulling
the decision appealed from, but there seems to be no reason why
we can not dispose of the heirs' appeal in a single proceeding.
It is pointed out that an attorney who is concurrently an executor of a
will is barred from recovering attorney's fees from the estate. The
Rule is specifically as follows:
SEC. 7. What expenses and fees allowed executor or administrator.
Not to charge for services as attorney. Compensation provided by
will controls unless renounced. — An executor or administrator shall
be allowed the necessary expenses in the care, management and
settlement of the estate, and for his services, four pesos per day for
the time actually and necessarily employed, or a commission upon
the value of so much of the estate as comes into his possession and
is finally disposed of by him in the payment of debts, expenses,
legacies, or distributive shares, or by delivery to heirs or devisees, of
two per centum of the first five thousand pesos of such value,
one per centum of so much of such value as exceeds five thousand
pesos and does not exceed thirty thousand pesos, one-half per
centumof so much of such value as exceeds thirty thousand pesos
and does not exceed one hundred thousand pesos, and one-
quarter per centum of so much of such value as exceeds one
hundred thousand pesos. But in any special case, where the estate
is large, and the settlement has been attended with great difficulty,
and has required a high degree of capacity on the part of the
executor or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be reexamined on
appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the court
according to the services actually rendered by them respectively.
When the executor or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him.
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full
satisfaction for his services unless by a written instrument filed in the
court he renounces all claim to the compensation provided by the
will. 17
The rule is therefore clear that an administrator or executor may be
allowed fees for the necessary expenses he has incurred as such,
but he may not recover attorney's fees from the estate. His
compensation is fixed by the rule but such a compensation is in the
nature of executor's or administrator's commissions, and never as
attorney's fees. In one case, 18 we held that "a greater sum [other
than that established by the rule] may be allowed 'in any special
case, where the estate is large, and the settlement has been
attended with great difficulty, and has required a high degree of
capacity on the part of the executor or administrator.'" 19 It is also left

to the sound discretion of the court. 20 With respect to attorney's
fees, the rule, as we have seen, disallows them. Accordingly, to the
extent that the trial court set aside the sum of P65,000.00 as and for
Mr. Serquina's attorney's fees, to operate as a "lien on the subject
properties," 21 the trial judge must be said to have gravely abused its
discretion (apart from the fact that it never acquired jurisdiction, in
the first place, to act on said Mr. Serquina's "motion for attorney's
fees").
The next question is quite obvious: Who shoulders attorney's fees?
We have held that a lawyer of an administrator or executor may not
charge the estate for his fees, but rather, his client. 22 Mutatis
mutandis, where the administrator is himself the counsel for the
heirs, it is the latter who must pay therefor.
In that connection, attorney's fees are in the nature of actual
damages, which must be duly proved. 23 They are also subject to
certain standards, to wit: (1) they must be reasonable, that is to say,
they must have a bearing on the importance of the subject matter in
controversy; (2) the extent of the services rendered; and (3) the
professional standing of the lawyer. 24 In all cases, they must be
addressed in a full-blown trial and not on the bare word of the
parties. 25 And always, they are subject to the moderating hand of
the courts.
The records show that Atty. Ephraim Serquina, as counsel for the
heirs, performed the following:
xxx xxx xxx
5. That after the order of allowance for probate of the will, the
undersigned counsel assisted the heirs to transfer immediately the
above-mentioned real estate in their respective names, from (sic)
the payment of estate taxes in the Bureau of Internal Revenue to the
issuance by the Registry of Deeds of the titles, in order for the heirs
to sell the foregoing real estate of 10,683 sq. cm (which was also the
subject of sale prior to the death of the testator) to settle testator's
obligations and day-to-day subsistence being (sic) that the heirs,
except Zena F. Velasco, are not employed neither doing any
business; 26
The Court is not persuaded from the facts above that Atty. Serquina
is entitled to the sum claimed by him (P68,000.00) or that awarded
by the lower court (P65,000.00). The Court observes that these are
acts performed routinely since they form part of what any lawyer
worth his salt is expected to do. The will was furthermore not
contested. They are not, so Justice Pedro Tuason wrote, "a case
[where] the administrator was able to stop what appeared to be an
improvident disbursement of a substantial amount without having to
employ outside legal help at an additional expense to the
estate," 27 to entitle him to a bigger compensation. He did not exactly
achieve anything out of the ordinary.
The records also reveal that Atty. Serquina has already been paid
the sum of P6,000.00. 28 It is our considered opinion that he should
be entitled to P15,000.00 for his efforts on a quantum meruit basis.
Hence, we hold the heirs liable for P9,000.00 more.
WHEREFORE, premises considered, judgment is hereby rendered:
(1) GRANTING the petition and making the temporary restraining
order issued on January 16, 1989 PERMANENT; and (2)
ORDERING the petitioners to PAY the private respondent, Atty.
Ephraim Serquina, attorney's fees in the sum of P9,000.00. The said
fees shall not be recovered from the estate of Carmelita Farlin.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 17
CODAL PROVISIONS and COMPILATION OF CASES
No costs.
SO ORDERED.
QUASHA LAW OFFICE v. LCN CONSTRUCTION
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 174873 August 26, 2008
QUASHA ANCHETA PEÑA AND NOLASCO LAW OFFICE FOR
ITS OWN BEHALF, AND REPRESENTING THE HEIRS OF
RAYMOND TRIVIERE, petitioners,
vs.
LCN CONSTRUCTION CORP., respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review under Rule 45 of the Revised Rules of
Court with petitioners Quasha Ancheta Peña and Nolasco Law
Office (Quasha Law Office) and the Heirs of Raymond Triviere
praying for the reversal of the Decision1 dated 11 May 2006 and
Resolution2 dated 22 September 2006 of the Court of Appeals
granting in part the Petition for Certiorari filed by respondent LCN
Construction Corporation (LCN) in CA-G.R. SP No. 81296.
The factual antecedents of the case are as follows:
Raymond Triviere passed away on 14 December 1987. On 13
January 1988, proceedings for the settlement of his intestate estate
were instituted by his widow, Amy Consuelo Triviere, before the
Regional Trial Court (RTC) of Makati City, Branch 63 of the National
Capital Region (NCR), docketed as Special Proceedings Case No.
M-1678. Atty. Enrique P. Syquia (Syquia) and Atty. William H.
Quasha (Quasha) of the Quasha Law Office, representing the widow
and children of the late Raymond Triviere, respectively, were
appointed administrators of the estate of the deceased in April 1988.
As administrators, Atty. Syquia and Atty. Quasha incurred expenses
for the payment of real estate taxes, security services, and the
preservation and administration of the estate, as well as litigation
expenses.
In February 1995, Atty. Syquia and Atty. Quasha filed before the
RTC a Motion for Payment of their litigation expenses. Citing their
failure to submit an accounting of the assets and liabilities of the
estate under administration, the RTC denied in May 1995 the Motion
for Payment of Atty. Syquia and Atty. Quasha.
In 1996, Atty. Quasha also passed away. Atty. Redentor Zapata
(Zapata), also of the Quasha Law Office, took over as the counsel of
the Triviere children, and continued to help Atty. Syquia in the
settlement of the estate.

On 6 September 2002, Atty. Syquia and Atty. Zapata filed another
Motion for Payment,3 for their own behalf and for their respective
clients, presenting the following allegations:
(1) That the instant Petition was filed on January 13, 1988; and Atty.
Enrique P. Syquia was appointed Administrator by the Order of this
Honorable Court dated April 12, 1988, and discharged his duties
starting April 22, 1988, after properly posting his administrator's
bond up to this date, or more than fourteen (14) years later.
Previously, there was the co-administrator Atty. William H. Quasha,
but he has already passed away.
(2) That, together with Co-administrator Atty. William H. Quasha,
they have performed diligently and conscientiously their duties as
Co-administrators, having paid the required Estate tax and settled
the various claims against the Estate, totaling approximately twenty
(20) claims, and the only remaining claim is the unmeritorious claim
of LCN Construction Corp., now pending before this Honorable
Court;
(3) That for all their work since April 22, 1988, up to July 1992, or for
four (4) years, they were only given the amount of P20,000.00 each
on November 28, 1988; and another P50,00.00 each on October
1991; and the amount of P100,000.00 each on July 1992; or a total
of P170,000.00 to cover their administration fees, counsel fees and
expenses;
(4) That through their work, they were able to settle all the testate
(sic) claims except the remaining baseless claim of LCN
Construction Corp., and were able to dismiss two (2) foreign claims,
and were also able to increase the monetary value of the estate from
roughly over P1Million to the present P4,738,558.63 as of August
25, 2002 and maturing on September 27, 2002; and the money has
always been with the Philippine National Bank, as per the Order of
this Honorable Court;
(5) That since July 1992, when the co-administrators were
paid P100,000.00 each, nothing has been paid to either
Administrator Syquia or his client, the widow Consuelo Triviere; nor
to the Quasha Law Offices or their clients, the children of the
deceased Raymond Triviere;
(6) That as this Honorable Court will notice, Administrator Syquia
has always been present during the hearings held for the many
years of this case; and the Quasha Law Offices has always been
represented by its counsel, Atty. Redentor C. Zapata; and after all
these years, their clients have not been given a part of their share in
the estate;
(7) That Administrator Syquia, who is a lawyer, is entitled to
additional Administrator's fees since, as provided in Section 7, Rule
85 of the Revised Rules of Court:
"x x x where the estate is large, and the settlement has been
attended with great difficulty, and has required a high degree of
capacity on the part of the executor or administrator, a greater sum
may be allowed…"
In addition, Atty. Zapata has also been present in all the years of this
case. In addition, they have spent for all the costs of litigation
especially the transcripts, as out-of-pocket expenses.
(8) That considering all the foregoing, especially the fact that neither
the Administrator or his client, the widow; and the Quasha Law
Offices or their clients, the children of the deceased, have received
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 18
CODAL PROVISIONS and COMPILATION OF CASES
any money for more than ten (10) years now, they respectfully move
that the amount of P1Million be taken from the Estate funds, to be
divided as follows:
a) P450,000.00 as share of the children of the deceased [Triviere]
who are represented by the Quasha Ancheta Peña & Nolasco Law
Offices;
b) P200,000.00 as attorney's fees and litigation expenses for the
Quasha Ancheta Peña & Nolasco Law Offices;
c) P150,000.00 as share for the widow of the deceased [Raymond
Triviere], Amy Consuelo Triviere; and
d) P200,000.00 for the administrator Syquia, who is also the counsel
of the widow; and for litigation costs and expenses.
LCN, as the only remaining claimant4 against the Intestate Estate of
the Late Raymond Triviere in Special Proceedings Case No. M-
1678, filed its Comment on/Opposition to the afore-quoted Motion on
2 October 2002. LCN countered that the RTC had already resolved
the issue of payment of litigation expenses when it denied the first
Motion for Payment filed by Atty. Syquia and Atty. Quasha for failure
of the administrators to submit an accounting of the assets and
expenses of the estate as required by the court. LCN also averred
that the administrators and the heirs of the late Raymond Triviere
had earlier agreed to fix the former's fees at only 5% of the gross
estate, based on which, per the computation of LCN, the
administrators were even overpaid P55,000.00. LCN further
asserted that contrary to what was stated in the second Motion for
Payment, Section 7, Rule 85 of the Revised Rules of Court was
inapplicable,5 since the administrators failed to establish that the
estate was large, or that its settlement was attended with great
difficulty, or required a high degree of capacity on the part of the
administrators. Finally, LCN argued that its claims are still
outstanding and chargeable against the estate of the late Raymond
Triviere; thus, no distribution should be allowed until they have been
paid; especially considering that as of 25 August 2002, the claim of
LCN against the estate of the late Raymond Triviere amounted
to P6,016,570.65 as against the remaining assets of the estate
totaling P4,738,558.63, rendering the latter insolvent.
On 12 June 2003, the RTC issued its Order6 taking note that "the
widow and the heirs of the deceased Triviere, after all the years,
have not received their respective share (sic) in the Estate x x x."
The RTC declared that there was no more need for accounting of
the assets and liabilities of the estate considering that:
[T]here appears to be no need for an accounting as the estate has
no more assets except the money deposited with the Union Bank of
the Philippines under Savings Account No. 12097-000656-0 x x x;
on the estate taxes, records shows (sic) that the BIR Revenue
Region No. 4-B2 Makati had issued a certificate dated April 27, 1988
indicating that the estate taxes has been fully paid.7
As to the payment of fees of Atty. Syquia and the Quasha Law
Office, the RTC found as follows:
[B]oth the Co-Administrator and counsel for the deceased (sic) are
entitled to the payment for the services they have rendered and
accomplished for the estate and the heirs of the deceased as they
have over a decade now spent so much time, labor and skill to
accomplish the task assigned to them; and the last time the
administrators obtained their fees was in 1992.8

Hence, the RTC granted the second Motion for Payment; however, it
reduced the sums to be paid, to wit:
In view of the foregoing considerations, the instant motion is hereby
GRANTED. The sums to be paid to the co-administrator and counsel
for the heirs of the deceased Triviere are however reduced.
Accordingly, the co-administrator Atty. Syquia and aforenamed
counsel are authorized to pay to be sourced from the Estate of the
deceased as follows:
a) P450,000.00 as share of the children of the deceased who are
represented by the Quasha, Ancheta, Pena, Nolasco Law Offices;
b) P100,000.00 as attorney's fees and litigation expenses for said
law firm;
c) P150,000.00 as share for the widow of the deceased Amy
Consuelo Triviere; and
d) P100,000.00 for the Co-administrator Atty. Enrique P. Syquia and
for litigation costs and expenses.9
LCN filed a Motion for Reconsideration10 of the foregoing Order on 2
July 2003, but it was denied by the RTC on 29 October 2003. 11
On 13 May 2004, LCN sought recourse from the Court of Appeals by
assailing in CA-G.R. SP No. 81296, a Petition for Certiorari, the RTC
Orders dated 12 June 2003 and 2 July 2003, for having been
rendered with grave abuse of discretion.12 LCN maintained that:
(1) The administrator's claim for attorney's fees, aside from being
prohibited under paragraph 3, Section 7 of Rule 85 is, together with
administration and litigation expenses, in the nature of a claim
against the estate which should be ventilated and resolved pursuant
to Section 8 of Rule 86;
(2) The awards violate Section 1, Rule 90 of the Rules of Court, as
there still exists its (LCN's) unpaid claim in the sum
of P6,016,570.65; and
(3) The alleged deliberate failure of the co-administrators to submit
an accounting of the assets and liabilities of the estate does not
warrant the Court's favorable action on the motion for payment. 13
On 11 May 2006, the Court of Appeals promulgated a Decision
essentially ruling in favor of LCN.
While the Court of Appeals conceded that Atty. Syquia and the
Quasha Law Office, as the administrators of the estate of the late
Raymond Triviere, were entitled to administrator's fees and litigation
expenses, they could not claim the same from the funds of the
estate. Referring to Section 7, Rule 85 of the Revised Rules of
Court, the appellate court reasoned that the award of expenses and
fees in favor of executors and administrators is subject to the
qualification that where the executor or administrator is a lawyer, he
shall not charge against the estate any professional fees for legal
services rendered by him. Instead, the Court of Appeals held that
the attorney's fees due Atty. Syquia and the Quasha Law Offices
should be borne by their clients, the widow and children of the late
Raymond Triviere, respectively.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 19
CODAL PROVISIONS and COMPILATION OF CASES
The appellate court likewise revoked the P450,000.00 share
and P150,000.00 share awarded by the RTC to the children and
widow of the late Raymond Triviere, respectively, on the basis that
Section 1, Rule 91 of the Revised Rules of Court proscribes the
distribution of the residue of the estate until all its obligations have
been paid.
The appellate court, however, did not agree in the position of LCN
that the administrators' claims against the estate should have been
presented and resolved in accordance with Section 8 of Rule 86 of
the Revised Rules of Court. Claims against the estate that require
presentation under Rule 86 refer to "debts or demands of a
pecuniary nature which could have been enforced against the
decedent during his lifetime and which could have been reduced to
simple judgment and among which are those founded on contracts."
The Court of Appeals also found the failure of the administrators to
render an accounting excusable on the basis of Section 8, Rule 85
of the Revised Rules of Court.14
Finding the Petition for Certiorari of LCN partly meritorious, the Court
of Appeals decreed:
WHEREFORE, premises considered, the instant petition is hereby
PARTLY GRANTED. The assailed Orders of the public respondent
are hereby AFFIRMED with MODIFICATION in that -
(1) the shares awarded to the heirs of the deceased Triviere in the
assailed Order of June 12, 2003 are hereby DELETED; and
(2) the attorney's fees awarded in favor of the co-administrators are
hereby DELETED. However, inasmuch as the assailed order fails to
itemize these fees from the litigation fees/administrator's fees
awarded in favor of the co-administrators, public respondent is
hereby directed to determine with particularity the fees pertaining to
each administrator.15
Petitioner filed a Motion for Reconsideration16 of the 11 May 2006
Decision of the Court of Appeals. The Motion, however, was denied
by the appellate court in a Resolution dated 22 September
2006,17explaining that:
In sum, private respondents did not earlier dispute [herein
respondent LCN's] claim in its petition that the law firm and its
lawyers served as co-administrators of the estate of the late Triviere.
It is thus quite absurd for the said law firm to now dispute in the
motion for reconsideration its being a co-administrator of the estate.
[Herein petitioners], through counsel, likewise appear to be adopting
in their motion for reconsideration a stance conflicting with their
earlier theory submitted to this Court. Notably, the memorandum for
[petitioner] heirs states that the claim for attorney's fees is supported
by the facts and law. To support such allegation, they contend that
Section 7 (3) of Rule 85 of the 1997 Rules of Civil Procedure finds
no application to the instant case since "what is being charged are
not professional fees for legal services rendered but payment for
administration of the Estate which has been under the care and
management of the co-administrators for the past fourteen (14)
years." Their allegation, therefore, in their motion for reconsideration
that Section 7 (3) of Rule 85 is inapplicable to the case of Quasha
Law Offices because it is "merely seeking payment for legal services
rendered to the estate and for litigation expenses" deserves scant
consideration.
xxxx

WHEREFORE, premises considered, private respondents' motion
for reconsideration is hereby DENIED for lack of merit. 18
Exhausting all available legal remedies, petitioners filed the present
Petition for Review on Certioraribased on the following assignment
of errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT THE AWARD IN FAVOR OF THE HEIRS OF THE LATE
RAYMOND TRIVIERE IS ALREADY A DISTRIBUTION OF THE
RESIDUE OF THE ESTATE.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING
THE AWARD OF ATTORNEY'S FEES IN FAVOR OF THE CO-
ADMINISTRATORS
I against the estate, still, they did constitute a partial and advance
The Court of Appeals modified the 12 June 2003 Order of the RTC
by deleting the awards of P450,000.00 and P150,000.00 in favor of
the children and widow of the late Raymond Triviere, respectively.
The appellate court adopted the position of LCN that the claim of
LCN was an obligation of the estate which was yet unpaid and,
under Section 1, Rule 90 of the Revised Rules of Court, barred the
distribution of the residue of the estate.
Petitioners, though, insist that the awards in favor of the petitioner
children and widow of the late Raymond Triviere is not a distribution
of the residue of the estate, thus, rendering Section 1, Rule 90 of the
Revised Rules of Court inapplicable.
Section 1, Rule 90 of the Revised Rules of Court provides:
Section 1. When order for distribution of residue made. - When the
debts, funeral charges, and expenses of administration, the
allowance to the widow, and inheritance tax, if any, chargeable to
the estate in accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a person interested
in the estate, and after hearing upon notice, shall assign the residue
of the estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such persons
may demand and recover their respective shares from the executor
or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are
the lawful heirs of the deceased person or as to the distributive
shares to which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the
distributees, or any of them, give a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations within such
time as the court directs.
According to petitioners, the 12 June 2003 Order of the RTC should
not be construed as a final order of distribution. The 12 June 2003
RTC Order granting the second Motion for Payment is a mere
interlocutory order that does not end the estate proceedings. Only
an order of distribution directing the delivery of the residue of the
estate to the proper distributees brings the intestate proceedings to
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 20
CODAL PROVISIONS and COMPILATION OF CASES
a close and, consequently, puts an end to the administration and
relieves the administrator of his duties.
A perusal of the 12 June 2003 RTC Order would immediately reveal
that it was not yet distributing the residue of the estate. The said
Order grants the payment of certain amounts from the funds of the
estate to the petitioner children and widow of the late Raymond
Triviere considering that they have not received their respective
shares therefrom for more than a decade. Out of the
reported P4,738,558.63 value of the estate, the petitioner children
and widow were being awarded by the RTC, in its 12 June 2003
Order, their shares in the collective amount of P600,000.00.
Evidently, the remaining portion of the estate still needs to be
settled. The intestate proceedings were not yet concluded, and the
RTC still had to hear and rule on the pending claim of LCN against
the estate of the late Raymond Triviere and only thereafter can it
distribute the residue of the estate, if any, to his heirs.
While the awards in favor of petitioner children and widow made in
the RTC Order dated 12 June 2003 was not yet a distribution of the
residue of the estate, given that there was still a pending claim
distribution of the estate. Virtually, the petitioner children and widow
were already being awarded shares in the estate, although not all of
its obligations had been paid or provided for.
Section 2, Rule 109 of the Revised Rules of Court expressly
recognizes advance distribution of the estate, thus:
Section 2. Advance distribution in special proceedings. -
Notwithstanding a pending controversy or appeal in proceedings to
settle the estate of a decedent, the court may, in its discretion
and upon such terms as it may deem proper and just, permit that
such part of the estate as may not be affected by the controversy or
appeal be distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule 90 of these
rules. (Emphases supplied.)
The second paragraph of Section 1 of Rule 90 of the Revised Rules
of Court allows the distribution of the estate prior to the payment of
the obligations mentioned therein, provided that "the distributees, or
any of them, gives a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as
the court directs."
In sum, although it is within the discretion of the RTC whether or not
to permit the advance distribution of the estate, its exercise of such
discretion should be qualified by the following: [1] only part of the
estate that is not affected by any pending controversy or appeal may
be the subject of advance distribution (Section 2, Rule 109); and [2]
the distributees must post a bond, fixed by the court, conditioned for
the payment of outstanding obligations of the estate (second
paragraph of Section 1, Rule 90). There is no showing that the RTC,
in awarding to the petitioner children and widow their shares in the
estate prior to the settlement of all its obligations, complied with
these two requirements or, at the very least, took the same into
consideration. Its Order of 12 June 2003 is completely silent on
these matters. It justified its grant of the award in a single sentence
which stated that petitioner children and widow had not yet received
their respective shares from the estate after all these years. Taking
into account that the claim of LCN against the estate of the late
Raymond Triviere allegedly amounted to P6,016,570.65, already in
excess of the P4,738,558.63 reported total value of the estate, the
RTC should have been more prudent in approving the advance
distribution of the same.

Petitioners earlier invoked Dael v. Intermediate Appellate
Court,,19 where the Court sustained an Order granting partial
distribution of an estate.
However, Dael is not even on all fours with the case at bar, given
that the Court therein found that:
Where, however, the estate has sufficient assets to ensure
equitable distribution of the inheritance in accordance with law and
the final judgment in the proceedings and it does not appear there
are unpaid obligations, as contemplated in Rule 90, for which
provisions should have been made or a bond required, such partial
distribution may be allowed. (Emphasis supplied.)
No similar determination on sufficiency of assets or absence of any
outstanding obligations of the estate of the late Raymond Triviere
was made by the RTC in this case. In fact, there is a pending claim
by LCN against the estate, and the amount thereof exceeds the
value of the entire estate.
Furthermore, in Dael, the Court actually cautioned that partial
distribution of the decedent's estate pending final termination of the
testate or intestate proceeding should as much as possible be
discouraged by the courts, and, except in extreme cases, such form
of advances of inheritance should not be countenanced. The reason
for this rule is that courts should guard with utmost zeal and jealousy
the estate of the decedent to the end that the creditors thereof be
adequately protected and all the rightful heirs be assured of their
shares in the inheritance.
Hence, the Court does not find that the Court of Appeals erred in
disallowing the advance award of shares by the RTC to petitioner
children and the widow of the late Raymond Triviere.
II
On the second assignment of error, petitioner Quasha Law Office
contends that it is entitled to the award of attorney's fees and that
the third paragraph of Section 7, Rule 85 of the Revised Rules of
Court, which reads:
Section 7. What expenses and fees allowed executor
or administrator. Not to charge for services as attorney.
Compensation provided by will controls unless renounced. x x x.
xxxx
When the executor or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him. (Emphasis supplied.)
is inapplicable to it. The afore-quoted provision is clear and
unequivocal and needs no statutory construction. Here, in
attempting to exempt itself from the coverage of said rule, the
Quasha Law Office presents conflicting arguments to justify its claim
for attorney's fees against the estate. At one point, it alleges that the
award of attorney's fees was payment for its administration of the
estate of the late Raymond Triviere; yet, it would later renounce that
it was an administrator.
In the pleadings filed by the Quasha Law Office before the Court of
Appeals, it referred to itself as co-administrator of the estate.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 21
CODAL PROVISIONS and COMPILATION OF CASES
In the Comment submitted to the appellate court by Atty. Doronila,
the member-lawyer then assigned by the Quasha Law Office to the
case, it stated that:
The 12 June 2003 Order granted the Motion for Payment filed by
Co-Administrator and counsel Atty. Enrique P. Syquia and the
counsel Atty. Cirilo E. Doronila and Co-Administrator for the
children of the late Raymond Triviere. x x x.20 (Emphasis supplied.)
It would again in the same pleading claim to be the "co-administrator
and counsel for the heirs of the late Raymond Triviere."21
Finally, the Memorandum it submitted to the Court of Appeals on
behalf of its clients, the petitioner-children of the late Raymond
Triviere, the Quasha Law Office alleged that:
2. The petition assails the Order of the Honorable Regional Trial
Court of Makati, Branch 63 granting the Motion for Payment filed
by Co-Administrators Atty. Enrique P. Syquia and the
undersigned counsel together with the children of the deceased
Raymond Triviere, and the Order dated 29 October 2003 denying
Petitioner's Motion for Reconsideration of the First Order.
xxxx
I. Statement of Antecedent Facts
xxxx
4. On 13 May 2004, Atty. Enrique Syquia, co-administrator and
counsel for respondent Amy Consuelo Triviere and the
undersigned counsel, co-administrator and counsel for the
children of the late Raymond Triviere filed their Comment.22
Petitioner Quasha Law Office asserts that it is not within the purview
of Section 7, Rule 85 of the Revised Rules of Court since it is not an
appointed administrator of the estate.23 When Atty. Quasha passed
away in 1996, Atty. Syquia was left as the sole administrator of the
estate of the late Raymond Triviere. The person of Atty. Quasha was
distinct from that of petitioner Quasha Law Office; and the
appointment of Atty. Quasha as administrator of the estate did not
extend to his law office. Neither could petitioner Quasha Law Office
be deemed to have substituted Atty. Quasha as administrator upon
the latter's death for the same would be in violation of the rules on
the appointment and substitution of estate administrators,
particularly, Section 2, Rule 82 of the Revised Rules of
Court.24 Hence, when Atty. Quasha died, petitioner Quasha Law
Office merely helped in the settlement of the estate as counsel for
the petitioner children of the late Raymond Triviere.
In its Memorandum before this Court, however, petitioner Quasha
Law Office argues that "what is being charged are not professional
fees for legal services rendered but payment for administration of
the Estate which has been under the care and management of the
co-administrators for the past fourteen (14) years."25
On the other hand, in the Motion for Payment filed with the RTC on 3
September 2002, petitioner Quasha Law Office prayed
for P200,000.00 as "attorney's fees and litigation expenses." Being
lumped together, and absent evidence to the contrary,
the P200,000.00 for attorney's fees and litigation expenses prayed
for by the petitioner Quasha Law Office can be logically and
reasonably presumed to be in connection with cases handled by
said law office on behalf of the estate. Simply, petitioner Quasha

Law Office is seeking attorney's fees as compensation for the legal
services it rendered in these cases, as well as reimbursement of the
litigation expenses it incurred therein.
The Court notes with disfavor the sudden change in the theory by
petitioner Quasha Law Office. Consistent with discussions in the
preceding paragraphs, Quasha Law Office initially asserted itself as
co-administrator of the estate before the courts. The records do not
belie this fact. Petitioner Quasha Law Office later on denied it was
substituted in the place of Atty. Quasha as administrator of the
estate only upon filing a Motion for Reconsideration with the Court of
Appeals, and then again before this Court. As a general rule, a party
cannot change his theory of the case or his cause of action on
appeal.26 When a party adopts a certain theory in the court below, he
will not be permitted to change his theory on appeal, for to permit
him to do so would not only be unfair to the other party but it would
also be offensive to the basic rules of fair play, justice and due
process.27 Points of law, theories, issues and arguments not brought
to the attention of the lower court need not be, and ordinarily will not
be, considered by a reviewing court, as these cannot be raised for
the first time at such late stage.28
29
This rule, however, admits of certain exceptions. In the interest of
justice and within the sound discretion of the appellate court, a party
may change his legal theory on appeal, only when the factual bases
thereof would not require presentation of any further evidence by the
adverse party in order to enable it to properly meet the issue raised
in the new theory.30
On the foregoing considerations, this Court finds it necessary to
exercise leniency on the rule against changing of theory on appeal,
consistent with the rules of fair play and in the interest of justice.
Petitioner Quasha Law Office presented conflicting arguments with
respect to whether or not it was co-administrator of the estate.
Nothing in the records, however, reveals that any one of the lawyers
of Quasha Law Office was indeed a substitute administrator for Atty.
Quasha upon his death.
The court has jurisdiction to appoint an administrator of an estate by
granting letters of administration to a person not otherwise
disqualified or incompetent to serve as such, following the procedure
laid down in Section 6, Rule 78 of the Rules of Court.
Corollary thereto, Section 2, Rule 82 of the Rules of Court provides
in clear and unequivocal terms the modes for replacing an
administrator of an estate upon the death of an administrator, to wit:
Section 2. Court may remove or accept resignation of executor or
administrator. Proceedings upon death, resignation, or removal. x x
x.
When an executor or administrator dies, resigns, or is removed the
remaining executor or administrator may administer the trust
alone, unless the court grants letters to someone to act with
him. If there is no remaining executor or administrator,
administration may be granted to any suitable person.
The records of the case are wanting in evidence that Quasha Law
Office or any of its lawyers substituted Atty. Quasha as co-
administrator of the estate. None of the documents attached pertain
to the issuance of letters of administration to petitioner Quasha Law
Office or any of its lawyers at any time after the demise of Atty.
Quasha in 1996. This Court is thus inclined to give credence to
petitioner's contention that while it rendered legal services for the
settlement of the estate of Raymond Triviere since the time of Atty.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 22
CODAL PROVISIONS and COMPILATION OF CASES
Quasha's death in 1996, it did not serve as co-administrator thereof,
granting that it was never even issued letters of administration.
The attorney's fees, therefore, cannot be covered by the prohibition
in the third paragraph of Section 7, Rule 85 of the Revised Rules of
Court against an attorney, to charge against the estate professional
fees for legal services rendered by them.
However, while petitioner Quasha Law Office, serving as counsel of
the Triviere children from the time of death of Atty. Quasha in 1996,
is entitled to attorney's fees and litigation expenses of P100,000.00
as prayed for in the Motion for Payment dated 3 September 2002,
and as awarded by the RTC in its 12 June 2003 Order, the same
may be collected from the shares of the Triviere children, upon final
distribution of the estate, in consideration of the fact that the Quasha
Law Office, indeed, served as counsel (not anymore as co-
administrator), representing and performing legal services for the
Triviere children in the settlement of the estate of their deceased
father.
Finally, LCN prays that as the contractor of the house (which the
decedent caused to be built and is now part of the estate) with a
preferred claim thereon, it should already be
awarded P2,500,000.00, representing one half (1/2) of the proceeds
from the sale of said house. The Court shall not take cognizance of
and rule on the matter considering that, precisely, the merits of the
claim of LCN against the estate are still pending the proper
determination by the RTC in the intestate proceedings below.
WHEREFORE, premises considered, the Petition for Review
on Certiorari is hereby PARTLY GRANTED. The Decision dated 11
May 2006 and Resolution dated 22 September 2006 of the Court of
Appeals in CA-G.R. SP No. 81296 are AFFIRMED, with
the following MODIFICATIONS:
1) Petitioner Quasha Law Office is entitled to attorney's fees of ONE
HUNDRED THOUSAND PESOS (P100,000.00), for legal services
rendered for the Triviere children in the settlement of the estate of
their deceased father, the same to be paid by the Triviere children in
the manner herein discussed; and
2) Attorneys Enrique P. Syquia and William H. Quasha are entitled
to the payment of their corresponding administrators' fees, to be
determined by the RTC handling Special Proceedings Case No. M-
1678, Branch 63 of the Makati RTC, the same to be chargeable to
the estate of Raymond Trieviere.
SO ORDERED.

EXAMINATION ON ACCOUNTING
Rule 85, Section 9. Examinations on oath with respect to
account — The court may examine the executor or administrator
upon oath with respect to every matter relating to any account
rendered by him, and shall so examine him as to the correctness of
his account before the same is allowed, except when no objection is
made to the allowance of the account and its correctness is
satisfactorily established by competent proof. The heirs, legatees,
distributees, and creditors of the estate shall have the same privilege
as the executor or administrator of being examined on oath on any
matter relating to an administration account.
Rule 85, Section 10. Account to be settled on notice. — Before the
account of an executor or administrator is allowed, notice shall be
given to persons interested of the time and place of examining and
allowing the same; and such notice may be given personally to such
persons interested or by advertisement in a newspaper or
newspapers, or both, as the court directs.
Rule 85, Section 11. Surety on bond may be party to accounting. —
Upon the settlement of the account of an executor or administrator,
a person liable as surety in respect to such account may, upon
application, be admitted as party to such accounting.
REVOCATION OF ADMINISTRATION
Rule 82, Section 1. Administration revoked if will
discovered. Proceedings thereupon. — If after letters of
administration have been granted on the estate of a decedent as if
he had died intestate, his will is proved and allowed by the court, the
letters of administration shall be revoked and all powers thereunder
cease, and the administrator shall forthwith surrender the letters to
the court, and render his account with such time as the court directs.
Proceeding for the issuance of letters testamentary or of
administration under the will shall be as hereinbefore provided.
REMOVAL / REPLACEMENT OF EXECUTOR / ADMINISTRATOR
Rule 82, Section 2. Court may be remove or accept resignation of
executor or administrator. Proceeding upon death, resignation, or
removal. — If an executor or administrator neglects to render his
account and settle the estate according to law, or to perform an
order or judgment of the court, or a duty expressly provided by these
rules, or absconds, or becomes insane, or otherwise incapable or
insuitable to discharge the trust, the court may remove him, or in its
discretion, may permit him to resign. When an executor or
administrator dies, resign, or is removed the remaining executor or
administrator may administer the the trust alone, unless the court
grants letters to someone to act with him. If there is no remaining
executor or administrator, administration may be to any suitable
person.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 23
CODAL PROVISIONS and COMPILATION OF CASES
CLAIMS AGAINST THE ESTATE (RULE 86)
NOTICE TO CREDITORS
Rule 86, Section 1. Notice to creditors to be issued by court. —
Immediately after granting letters testamentary or of administration,
the court shall issue a notice requiring all persons having money
claims against the decedent to file them in the office of the clerk of
said court.
Rule 86, Section 2. Time within which claims shall be filed. — In the
notice provided in the preceding section, the court shall estate the
time for the filing of claims against the estate, which shall not be
more than twelve (12) not less than six (6) months after the date of
the first publication of the notice. 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 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, Section 3. Publication of notice to creditors. — Every
executor or administrator shall, immediately after the notice to
creditors is issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulation in the province,
and to be posted for the same period in four public places in the
province and in two public places in the municipality where the
decedent last resided.
Rule 86, Section 4. Filing of copy of printed notice. — Within ten
(10) days after the notice has been published and posted in
accordance with the preceding section, the executor or administrator
shall file or cause to be filed in the court a printed copy of the notice
accompanied with an affidavit setting forth the dates of the first and
last publication thereof and the name of the newspaper in which the
same is printed.
Rule 86, Section 5. Claims which must be filed under the notice. If
not filed, barred; exceptions. — All claims for money against the
decent, arising from contract, express or implied, whether the same
be due, not due, or contingent, all claims for funeral expenses and
expense for the last sickness of the decedent, and judgment for
money against the decent, must be filed within the time limited in the
notice; 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. Where an executor or
administrator commences an action, or prosecutes an action already
commenced by the deceased in his lifetime, the debtor may set forth
by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and
mutual claims may be set off against each other in such action; and
if final judgment is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against the estate,
as though the claim had been presented directly before the court in
the administration proceedings. Claims not yet due, or contingent,
may be approved at their present value.

STATUTE OF NON-CLAIMS
SANTOS v. MANARANG
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8235 March 19, 1914
ISIDRO SANTOS, plaintiff-appellant,
vs.
LEANDRA MANARANG, administratrix, defendant-appellee.
W. A. Kincaid and Thomas L. Hartigan for appellant.
Ramon Salinas for appellee.
TRENT, J.:
Don Lucas de Ocampo died on November 18, 1906, possessed of
certain real and personal property which, by his last will and
testament dated July 26, 1906, he left to his three children. The
fourth clause of this will reads as follows:
I also declare that I have contracted the debts detailed below, and it
is my desire that they may be religiously paid by my wife and
executors in the form and at the time agreed upon with my creditors.
Among the debts mentioned in the list referred to are two in favor of
the plaintiff, Isidro Santos; one due on April 14, 1907, for P5,000,
and various other described as falling due at different dates (the
dates are not given) amounting to the sum of P2,454. The will was
duly probated and a committee was regularly appointed to hear and
determine such claims against the estate as might be presented.
This committee submitted its report to the court on June 27, 1908.
On July 14, 1908, the plaintiff, Isidro Santos, presented a petition to
the court asking that the committee be required to reconvene and
pass upon his claims against the estate which were recognized in
the will of testator. This petition was denied by the court, and on
November 21, 1910, the plaintiff instituted the present proceedings
against the administratrix of the estate to recover the sums
mentioned in the will as due him. Relief was denied in the court
below, and now appeals to this court.
In his first assignment of error, the appellant takes exception to the
action of the court in denying his petition asking that the committee
be reconvened to consider his claim. In support of this alleged error
counsel say that it does not appear in the committee's report that the
publications required by section 687 of the Code of Civil Procedure
had been duly made. With reference to this point the record
affirmatively shows that the committee did make the publications
required by law. It is further alleged that at the time the appellant
presented his petition the court had not approved the report of the
committee. If this were necessary we might say that, although the
record does not contain a formal approval of the committee's report,
such approval must undoubtedly have been made, as will appear
from an inspection of the various orders of the court approving the
annual accounts of the administratrix, in which claims allowed
against the estate by the committee were written off in accordance
with its report. This is shown very clearly from the court's order of
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 24
CODAL PROVISIONS and COMPILATION OF CASES
August 1, 1912, in which the account of the administratrix was
approved after reducing final payments of some of the claims
against the estate to agree with the amounts allowed by the
committee. It is further alleged that at the time this petition was
presented the administration proceedings had not been terminated.
This is correct.
In his petition of July 14, 1909, asking that the committee be
reconvened to consider his claims, plaintiff states that his failure to
present the said claims to the committee was due to his belief that it
was unnecessary to do so because of the fact that the testator, in his
will, expressly recognized them and directed that they should be
paid. The inference is that had plaintiff's claims not been mentioned
in the will he would have presented to the committee as a matter of
course; that plaintiff was held to believe by this express mention of
his claims in the will that it would be unnecessary to present them to
the committee; and that he did not become aware of the necessity of
presenting them to the committee until after the committee had
made its final report.
Under these facts and circumstances, did the court err in refusing to
reconvene the committee for the purpose of considering plaintiff's
claim? The first step towards the solution of this question is to
determine whether plaintiff's claims were such as a committee
appointed to hear claims against an estate is, by law, authorized to
pass upon. Unless it was such a claim plaintiff's argument has no
foundation. Section 686 empowers the committee to try and decide
claims which survive against the executors and administrators, even
though they be demandable at a future day "except claims for the
possession of or title to real estate." Section 700 provides that all
actions commenced against the deceased person for the recovery of
money, debt, or damages, pending at the time the committee is
appointed, shall be discontinued, and the claims embraced within
such actions presented to the committee. Section 703 provides that
actions to recover title or possession of real property, actions to
recover damages for injury to person or property, real and personal,
and actions to recover the possession of specified articles of
personal property, shall survive, and may be commenced and
prosecuted against the executor or administrator; "but all other
actions commenced against the deceased before his death shall be
discontinued and the claims therein involved presented before the
committee as herein provided." Section 708 provides that a claim
secured by a mortgage or other collateral security may be
abandoned and the claim prosecuted before the committee, or the
mortgage may be foreclosed or the security be relied upon, and in
the event of a deficiency judgment, the creditor may, after the sale of
mortgage or upon the insufficiency of the security, prove such
deficiency before the committee on claims. There are also certain
provisions in section 746 et seq., with reference to the presentation
of contingent claims to the committee after the expiration of the time
allowed for the presentation of claims not contingent. Do plaintiff's
claims fall within any of these sections? They are described in the
will as debts. There is nothing in the will to indicate that any or all of
them are contingent claims, claims for the possession of or title to
real property, damages for injury to person or property, real or
personal, or for the possession of specified articles of personal
property. Nor is it asserted by the plaintiff that they do. The
conclusion is that they were claims proper to be considered by the
committee.
This being true, the next point to determine is, when and under what
circumstances may the committee be recalled to consider belated
claims? Section 689 provides:

That court shall allow such time as the circumstances of the case
require for the creditors to present their claims 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.
It cannot be questioned that thus section supersedes the ordinary
limitation of actions provided for in chapter 3 of the Code. It is strictly
confined, in its application, to claims against the estate of deceased
persons, and has been almost universally adopted as part of the
probate law of the United States. It is commonly termed the statute
of nonclaims, and its purpose is to settle the affairs of the estate with
dispatch, so that residue may be delivered to the persons entitled
thereto without their being afterwards called upon to respond in
actions for claims, which, under the ordinary statute of limitations,
have not yet prescribed.
The object of the law in fixing a definite period within which claims
must be presented is to insure the speedy settling of the affairs of a
deceased person and the early delivery of the property of the estate
in the hands of the persons entitled to receive it. (Estate of De Dios,
24 Phil. Rep., 573.)
Due possibly to the comparative shortness of the period of limitation
applying to such claims as compared with the ordinary statute of
limitations, the statute of nonclaims has not the finality of the
ordinary statute of limitations. It may be safely said that a saving
provision, more or less liberal, is annexed to the statute of nonclaims
in every jurisdiction where is found. In this country its saving clause
is found in section 690, which reads as follows:
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.
If the committee fails to give the notice required, that is a sufficient
cause for reconvening it for further consideration of claims which
may not have been presented before its final report was submitted to
the court. But, as stated above, this is not the case made by the
plaintiff, as the committee did give the notice required by law. Where
the proper notice has been given the right to have the committee
recalled for the consideration of a belated claim appears to rest first
upon the condition that it is presented within six months after the
time previously limited for the presentation of claims. In the present
case the time previously limited was six months from July 23, 1907.
This allowed the plaintiff until January 23, 1908, to present his
claims to the committee. An extension of this time under section 690
rested in the discretion of the court. (Estate of De Dios, supra.) In
other words, the court could extend this time and recall the
committee for a consideration of the plaintiff's claims against the
estate of justice required it, at any time within the six months after
January 23, 1908, or until July 23, 1908. Plaintiff's petition was not
presented until July 14, 1909. The bar of the statute of nonclaims is
an conclusive under these circumstances as the bar of the ordinary
statute of limitations would be. It is generally held that claims are not
barred as to property not included in the inventory.
(Waughop vs. Bartlett, 165 III., 124; Estate of Reyes, 17 Phil. Rep.,
188.) So also, as indicated by this court in the case last cited, fraud
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 25
CODAL PROVISIONS and COMPILATION OF CASES
would undoubtedly have the same effect. These exceptions to the
operation of the statute are, of course, founded upon the highest
principles of equity. But what is the plea of the plaintiff in this case?
Simply this: That he was laboring under a mistake of law — a
mistake which could easily have been corrected had he sought to
inform himself; a lack of information as to the law governing the
allowance of claims against estate of the deceased persons which,
by proper diligence, could have been remedied in ample to present
the claims to the committee. Plaintiff finally discovered his mistake
and now seeks to assert his right when they have been lost through
his own negligence. Ignorantia legis neminem excusat. We conclude
that the learned trial court made no error in refusing to reconvene
the committee for the purpose of considering plaintiff's claims
against the estate.
In his second assignment of error the appellant insists that the court
erred in dismissing his petition filed on November 21, 1910, wherein
he asks that the administratrix be compelled to pay over to him the
amounts mentioned in the will as debts due him. We concede all that
is implied in the maxim, dicat testor et erit lex. But the law imposes
certain restrictions upon the testator, not only as to the disposition of
his estate, but also as to the manner in which he may make such
disposition. As stated in Rood on Wills, sec. 412: "Some general
rules have been irrevocably established by the policy of the law,
which cannot be exceeded or transgressed by any intention of the
testator, be it ever so clearly expressed."
It may be safely asserted that no respectable authority can be found
which holds that the will of the testator may override positive
provisions of law and imperative requirements of public policy. (Page
on Wills, sec. 461.)
Impossible conditions and those contrary to law and good morals
shall be considered as not imposed, . . . (Art. 792, Civil Code.)
Conceding for the moment that it was the testator's desire in the
present case that the debts listed by him in his will should be paid
without referring them to a committee appointed by the court, can
such a provision be enforced? May the provisions of the Code of
Civil Procedure relating to the settlement of claims against an estate
by a committee appointed by the court be superseded by the
contents of a will?
It is evident from the brief outline of the sections referred to above
that the Code of Civil Procedure has established a system for the
allowance of claims against the estates of decedents. Those are at
least two restrictions imposed by law upon the power of the testator
to dispose of his property, and which pro tanto restrict the maxim
that "the will of the testator law: (1) His estate is liable for all legal
obligations incurred by him; and (2) he can not dispose of or
encumber the legal portion due his heirs by force of law. The former
take precedence over the latter. (Sec. 640, Code Civ, Proc.) In case
his estate is sufficient they must be paid. (Sec, 734, id.) In case the
estate is insolvent they must be paid in the order named in section
735. It is hardly necessary to say that a provision in an insolvent's
will that a certain debt be paid would not entitle it to preference over
other debts. But, if the express mention of a debt in the will requires
the administrator to pay it without reference to the committee, what
assurance is there, in the case of an insolvent estate, that it will not
take precedence over preferred debts?
If it is unnecessary to present such claim to the committee, the
source of nonclaims is not applicable. It is not barred until from four
to ten years, according to its classification in chapter 3 of the Code
of Civil Procedure, establishing questions upon actions. Under such
circumstances, when then the legal portion is determined? If, in the

meantime the estate has been distributed, what security have the
differences against the interruption of their possession? Is the
administrator required to pay the amount stipulated in the will
regardless of its correctness? And, if not, what authority has he to
vise the claim? Section 706 of the Code of Civil Procedure provides
that an executor may, with the approval of the court, compound with
a debtor of deceased for a debt due the estate, But he is nowhere
permitted or directed to deal with a creditor of the estate. On the
contrary, he is the advocate of the estate before an impartial
committee with quasi-judicial power to determine the amount of the
claims against the estate, and, in certain cases, to equitably adjust
the amounts due. The administrator, representing the debtor estate,
and the creditor appear before this body as parties litigant and, if
either is dissatisfied with its decision, an appeal to the court is their
remedy. To allow the administrator to examine and approve a claim
against the estate would put him in the dual role of a claimant and a
judge. The law in this jurisdiction has been so framed that this may
not occur. The most important restriction, in this jurisdiction, on the
disposition of property by will are those provisions of the Civil Code
providing for the preservation of the legal portions due to heirs by
force of law, and expressly recognized and continued in force by
sections 614, 684, and 753 of the Code of Civil Procedure. But if a
debt is expressly recognized in the will must be paid without its
being verified, there is nothing to prevent a partial or total alienation
of the legal portion by means of a bequest under a guise of a debt,
since all of the latter must be paid before the amount of the legal
portion can be determined.
We are aware that in some jurisdictions executors and
administrators are, by law, obligated to perform the duties which, in
this jurisdiction, are assign to the committee on claims; that in some
other jurisdictions it is the probate court itself that performs these
duties; that in some jurisdictions the limitation upon the presentment
of claims for allowance is longer and, possibly, in some shorter; and
that there is a great divergence in the classification of actions which
survive and actions which do not survive the death of the testator. It
must be further remembered that there are but few of the United
States which provide for heirs by force of law. These differences
render useless as authorities in this jurisdiction many of the cases
coming from the United States. The restriction imposed upon the
testator's power to dispose of his property when they are heirs by
force of law is especially important. The rights of these heirs by force
law pass immediately upon the death of the testator. (Art. 657, Civil
Code.) The state intervenes and guarantees their rights by many
stringent provisions of law to the extent mentioned in article 818 of
the Civil Code. Having undertaken the responsibility to deliver the
legal portion of the net assets of the estate to the heirs by force of
law, it is idle to talk of substituting for the procedure provided by law
for determining the legal portion, some other procedure provided in
the will of the testator. The state cannot afford to allow the
performance of its obligations to be directed by the will of an
individual. There is but one instance in which the settlement of the
estate according to the probate procedure provided in the Code of
Civil Procedure may be dispense with, and it applies only
to intestateestates. (Sec. 596, Code Civ. Proc.) A partial exemption
from the lawful procedure is also contained in section 644, when the
executor or administrator is the sole residuary legatee. Even in such
case, and although the testator directs that no bond be given, the
executor is required to give a bond for the payment of the debts of
the testator. The facts of the present case do not bring it within either
of this sections. We conclude that the claims against the estate in
the case at bar were enforceable only when the prescribed legal
procedure was followed.
But we are not disposed to rest our conclusion upon this phase of
the case entirely upon legal grounds. On the contrary we are
strongly of the opinion that the application of the maxim, "The will of
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 26
CODAL PROVISIONS and COMPILATION OF CASES
the testator is the law of the case," but strengthens our position so
far as the present case is concerned.
It will ordinarily be presumed in construing a will that the testator is
acquainted with the rules of law, and that he intended to comply with
them accordingly. If two constructions of a will or a part thereof are
possible, and one of these constructions is consistent with the law,
and the other is inconsistent, the presumption that the testator
intended to comply with the law will compel that construction which
is consistent with the law to be adopted. (Page on Wills, sec. 465.)
Aside from this legal presumption, which we believe should apply in
the present case as against any construction of the will tending to
show an intention of the testator that the ordinary legal method of
probating claims should be dispensed with, it must be remembered
that the testator knows that the execution of his will in no way affects
his control over his property. The dates of his will and of his death
may be separated by a period of time more or less appreciable. In
the meantime, as the testator well knows, he may acquire or dispose
of property, pay or assume additional debts, etc. In the absence of
anything to the contrary, it is only proper to presume that the
testator, in his will, is treating of his estate at the time and in the
condition it is in at his death. Especially is this true of his debts.
Debts may accrue and be paid in whole or in part between the time
the will is made and the death of the testator. To allow a debt
mentioned in the will in the amount expressed therein on the ground
that such was the desire of the testator, when, in fact, the debt had
been wholly or partly paid, would be not only unjust to the residuary
heirs, but a reflection upon the good sense of the testator himself.
Take the present case for example. It would be absurd to say that
the testator knew what the amount of his just debt would be at a
future and uncertain date. A mere comparison of the list of the
creditors of the testator and the amounts due them as described in
his will, with the same list and amounts allowed by the committee on
claims, shows that the testator had creditors at the time of his death
not mention in the will at all. In other instances the amounts due this
creditors were either greater or less than the amounts mentioned as
due them in the will. In fact, of those debts listed in the will, not a
single one was allowed by the committee in the amount named in
the will. This show that the testator either failed to list in his will all
his creditors and that, as to those he did include, he set down an
erroneous amount opposite their names; or else, which is the only
reasonable view of the matter, he overlooked some debts or
contracted new ones after the will was made and that as to others
he did include he made a partial payments on some and incurred
additional indebtedness as to others.
While the testator expresses the desire that his debts be paid, he
also expressly leaves the residue of his estate, in equal parts, to his
children. Is it to be presumed that he desired to overpay some of his
creditors notwithstanding his express instructions that his own
children should enjoy the net assets of his estate after the debts
were paid? Again, is the net statement of the amount due some of
his creditors and the omission all together of some of his creditors
compatible with his honorable and commendable desire, so clearly
expressed in his will, that all his debts be punctually paid? We
cannot conceive that such conflicting ideas were present in the
testator's mind when he made his will.
Again, suppose the testator erroneously charged himself with a debt
which he was under no legal or even moral obligation to pay. The
present case suggests, if it does not actually present, such a state of
affairs. Among the assets of the estate mentioned in the will is a
parcel of land valued at P6,500; while in the inventory of the
administratrix the right to repurchase this land from one Isidro
Santos is listed as an asset. Counsel for the administratrix alleges

that he is prepared to prove that this is the identical plaintiff in the
case at bar; that the testator erroneously claimed the fee of this land
in his last will and stated Santos' rights in the same as a mere debt
due him of P5,000; that in reality, the only asset of the testator
regard to this land was the value of the right to repurchase, while the
ownership of the land, subject only to that right of redemption,
belonged to Santos; that the right to repurchase this land expired in
1907, after the testator's death. Assuming, without in the least
asserting, that such are the underlying facts of this case, the unjust
consequences of holding that a debt expressly mentioned in the will
may be recovered without being presented to the committee on
claims, is at once apparent. In this supposed case, plaintiff needed
only wait until the time for redemption of the land had expired, when
he would acquired an absolute title to the land, and could also have
exacted the redemption price. Upon such a state of facts, the one
item of P5,000 would be a mere fictitious debt, and as the total net
value of the estate was less than P15,000, the legal portion of the
testator's children would be consumed in part in the payment of this
item. Such a case cannot occur if the prescribed procedure is
followed of requiring of such claims be viseed by the committee on
claims.
The direction in the will for the executor to pay all just debts does not
mean that he shall pay them without probate. There is nothing in the
will to indicate that the testator in tended that his estate should be
administered in any other than the regular way under the statute,
which requires "all demands against the estates of the deceased
persons," "all such demands as may be exhibited," etc. The statute
provides the very means for ascertaining whether the claims against
the estate or just debts. (Kaufman vs. Redwine, 97 Ark., 546.)
See also Collamore vs. Wilder (19 Kan., 67); O'Neil vs. Freeman (45
N. J. L., 208).
The petition of the plaintiff filed on November 21, 1910, wherein he
asks that the administratrix be compelled to pay over to him the
amounts mentioned in the will as debts due him appears to be
nothing more nor less than a complaint instituting an action against
the administratrix for the recovery of the sum of money. Obviously,
the plaintiff is not seeking possession of or title to real property or
specific articles of personal property.
When a committee is appointed as herein provided, no action or suit
shall be commenced or prosecute against the executor or
administrator upon a claim against the estate to recover a debt due
from the state; but actions to recover the seizing and possession of
real estate and personal chattels claimed by the estate may be
commenced against him. (Sec. 699, Code Civ. Proc.)
The sum of money prayed for in the complaint must be due the
plaintiff either as a debt of a legacy. If it is a debt, the action was
erroneously instituted against the administratrix. Is it a legacy?
Plaintiff's argument at this point becomes obviously inconsistent.
Under his first assignment of error he alleges that the committee on
claims should have been reconvened to pass upon his claim against
the estate. It is clear that this committee has nothing to do with
legacies. It is true that a debt may be left as a legacy, either to the
debtor (in which case it virtually amounts to a release), or to a third
person. But this case can only arise when the debt is an asset of the
estate. It would be absurd to speak of a testator's leaving a bare
legacy of his own debt. (Arts. 866, 878, Civil Code.) The creation of
a legacy depends upon the will of the testator, is an act of pure
beneficence, has no binding force until his death, and may be
avoided in whole or in part by the mere with whim of the testator,
prior to that time. A debt arises from an obligation recognized by law
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 27
CODAL PROVISIONS and COMPILATION OF CASES
(art. 1089, Civil Code) and once established, can only be
extinguished in a lawful manner. (Art. 1156, id.) Debts are
demandable and must be paid in legal tender. Legacies may, and
often do, consist of specific articles of personal property and must be
satisfied accordingly. In order to collect as legacy the sum
mentioned in the will as due him, the plaintiff must show that it is in
fact a legacy and not a debt. As he has already attempted to show
that this sum represents a debt, it is an anomaly to urge now it is a
legacy.
Was it the intention of the testator to leave the plaintiff a legacy of
P7,454? We have already touched upon this question. Plaintiff's
claim is described by the testator as a debt. It must be presumed
that he used this expression in its ordinary and common acceptation;
that is, a legal liability existing in favor of the plaintiff at the time the
will was made, and demandable and payable in legal tender. Had
the testator desired to leave a legacy to the plaintiff, he would have
done so in appropriate language instead of including it in a
statement of what he owed the plaintiff. The decedent's purpose in
listing his debts in his will is set forth in the fourth clause of the will,
quoted above. There is nothing contained in that clause which
indicates, even remotely, a desire to pay his creditors more than was
legally due them.
A construction leading to a legal, just and sensible result is
presumed to be correct, as against one leading to an illegal,
unnatural, or absurd effect. (Rood on Wills, sec. 426.)
The testator, in so many words, left the total net assets of his estate,
without reservation of any kind, to his children per capita. There is
no indication that he desired to leave anything by way of legacy to
any other person. These considerations clearly refute the suggestion
that the testator intended to leave plaintiff any thing by way of
legacy. His claim against the estate having been a simple debt, the
present action was improperly instituted against the administratrix.
(Sec. 699, Code Civ. Proc.)
But it is said that the plaintiff's claims should be considered as
partaking of the nature of a legacy and disposed of accordingly. If
this be perfect then the plaintiff would receive nothing until after all
debts had been paid and the heirs by force of law had received their
shares. From any point of view the inevitable result is that there
must be a hearing sometime before some tribunal to determine the
correctness of the debts recognized in the wills of deceased
persons. This hearing, in the first instance, can not be had before
the court because the law does not authorize it. Such debtors must
present their claims to the committee, otherwise their claims will be
forever barred.
For the foregoing reasons the orders appealed from are affirmed,
with costs against the appellant.
EXCEPTION TO STATUTE OF NON-CLAIMS
Rule 86, Section 5. Claims which must be filed under the notice. If
not filed, barred; exceptions. — All claims for money against the
decent, arising from contract, express or implied, whether the same
be due, not due, or contingent, all claims for funeral expenses and
expense for the last sickness of the decedent, and judgment for
money against the decent, must be filed within the time limited in the
notice; 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. Where an executor or
administrator commences an action, or prosecutes an action already
commenced by the deceased in his lifetime, the debtor may set forth

by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and
mutual claims may be set off against each other in such action; and
if final judgment is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against the estate,
as though the claim had been presented directly before the court in
the administration proceedings. Claims not yet due, or contingent,
may be approved at their present value.
xxx
Rule 86, Section 7. 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 foreclosure 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 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.
REMEDIES OF MORTGAGEE
Rule 86, Section 7. Mortgage debt due from estate. — A creditor
holding a claim against the deceased secured by mortgage or other
colateral 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 foreclosure 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 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.
CLAIMS NOT DUE, CONTINGENT
Rule 88, Section 5. How contingent claim becoming absolute in two
years allowed and paid. Action against distributees later. — If such
contingent claim becomes absolute and is presented to the court, or
to the executor or administrator, within two (2) 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 and allowed or disallowed by the court as
the facts may warrant. If the contingent claim is allowed, the creditor
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 28
CODAL PROVISIONS and COMPILATION OF CASES
shall receive payment to the same extent as the other creditors if the
estate retained by the executor or administrator is sufficient. But if
the claim is not so presented, after having become absolute, within
said two (2) years, and allowed, the assets retained in the hands of
the executor or administrator, not exhausted in the payment of
claims, shall be disturbed by the order of the court to the persons
entitled to the same; but the assets so distributed may still be
applied to the payment of the claim when established, and the
creditor may maintain an action against the distributees to recover
the debt, and such distributees and their estates shall be liable for
the debt in proportion to the estate they have respectively received
from the property of the deceased.
MCMICKING v. SYCONBIENG
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6871 January 15, 1912
JOSE McMICKING, administrator of the estate of Margarita
Jose, plaintiff-appellant,
vs.
BENITO SY CONBIENG, administrator of the estate of Pio de la
Gurdia Barretto Sy Pioco, defendant-appellee.
Haussermann, Cohn & Fisher for appellant.
D. R. Williams for appellee.
MORELAND, J.:
On or about the 5th of February, 1902, one Margarita Jose, a native
of the Philippine Islands, died at Amoy, in the empire of China,
leaving an estate consisting of personal property partly in Hongkong
and partly in the Philippine Islands. On the 16th of April, 1902, one
Engracio Palanca was appointed administrator with the will annexed
of the estate of the said Margarita Jose, deceased, by the Court of
First Instance of the city of Manila, and Mariano Ocampo Lao
Sempco and Dy Cunyao became his sureties and qualified as such
in the sum of P60,000. After the execution of this bond the said
Palanca, as such administrator, took possession of all the property
of the said Margarita Jose, amounting in all to $58,820.29 Hongkong
currency. On the 22d of April, 1904, the Mariano Ocampo Lao
Sempco died in the city of Manila, testate. The fact of his death was
brought to the attention of the Court of First Instance of said city on
the 2nd of November, 1904, by an application made by one of the
legatees of said Margarita Jose, deceased, for an order directing
said administrator to furnish a new bond. Pursuant to this application
the court, on the 10th of November, 1904, made an order directing
the said Palanca to furnish a bond in the sum of P60,000 to take the
place of the undertaking upon which said Mariano Ocampo,
deceased, and Dy Cunyao were sureties. The bond thus required
was duly filed on the 22nd of November, 1904, the sureties thereon
being Juan Fernandez, Luis Saenz de Vismanos and Alejandro
Palanca. On the 11th of May, 1904, one Doroteo Velasco was
appointed administrator with the will annexed of said Mariano
Ocampo Lao Sempco, deceased, and on July 7 following Mariano
Velasco and Pio de la Guardia Barretto qualified as sureties of the
said administrator in the sum of P30,000. Said Mariano Ocampo Lao

Sempco left him surviving as his heirs at law and devises and
legatees one daughter, to whom he devised two-thirds of his estate,
and three sons in China, to whom he devised the remaining one-
third. On the 27th of July, 1904, said Doroteo Velasco, as such
administrator, filed with the court a complete report and inventory of
the property of the deceased, together with a statement of all his
debts and liabilities. As a part of this report and inventory said
administrator filed an instrument signed by all of the persons
interested in the estate of the said Mariano Ocampo agreeing to the
partition of he estate among themselves without proceedings in
court, at the same time assuming the payment of all obligations
against the estate. This agreement of partition was drawn and
executed under sections 596 and 597 of the Code of Civil Procedure
for the purposes and to attain the ends therein mentioned. On the
28th of July, 1904, the Court of First Instance of the city of Manila,
upon the request of the administrator with the will annexed and of all
parties interested in the estate of the said Mariano Ocampo,
deceased, entered an order in said agreement. Pursuant to such
agreement and order of the court approving the same, and after all
the liabilities under which said estate lay had been fully paid and
satisfied, the said Doroteo Velasco, as said administrator, delivered
to the devisees and legatees of the said Mariano Ocampo,
deceased, all of the property of said decedent pursuant to the terms
of said agreement of partition, leaving in the hands of said
administrator no property or thing of value whatsoever belonging to
the said estate. From that time forward said administrator has not
had in his possession or control any of the assets of the said estate
and has not had any participation in the management thereof. At the
time the agreement for participation was made and signed and at
the time of the distribution of the property of the estate pursuant
thereto, no committee had been appointed to hear claims against
the estate of the said Mariano Ocampo, deceased, and no notice
had been published to creditors of the said deceased to present their
claims against the said estate in the manner prescribed by law.
On the 30th of March, 1908, by virtue of an order made by the Court
of First Instance of the city of Manila, upon application of all parties
interested, the said Engracio Palanca was removed from office as
administrator of the estate of said Margarita Jose, deceased, and
the plaintiff herein, Jose McMicking, was appointed in his stead. The
said Palanca was removed from office by reason of the fact that he
failed and refused to render an account of the property and funds of
the estate of the said Margarita Jose, deceased, which has come to
his possession as such administrator, and failed and refused, on
order of the court, to deliver said property and funds or any portion
thereof to the court or to the said Jose McMicking, his successor.
Instead of so doing, he retained possession of said property and
funds, absconded with the same, and never returned to the
Philippine Islands. At the time of his removal he was indebted to the
estate in the sum of P41,960.15, no part of which has ever been
received by the estate or by its representative.
On the 30th of June, 1909, Jose McMicking, as administrator, made
an application to the court for the appointment of commissioners of
the estate of said Mariano Ocampo for the purpose of hearing claims
against the estate. The commission having been appointed and
qualified, a claim was presented to it by the plaintiff based upon the
defalcation of said Engracio Palanca, as administration with the will
annexed of Margarita Jose, deceased, which claim was allowed by
said commission and later approved by the court, which directed that
the said claim be paid by Doroteo Velasco, if he had sufficient funds
to make such payment. No part of the sum thus found to be due by
the commission has been paid to the representative of the estate of
said Margarita Jose, deceased.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 29
CODAL PROVISIONS and COMPILATION OF CASES
On the 3rd of November, 1905, Pio de la Barretto, who, it will be
remembered, was one of the sureties on the undertaking of Doroteo
Velasco, as administrator with the will annexed of Mariano Ocampo,
deceased, died in the city of Manila, leaving an estate consisting of
real and personal property located in the city. Said deceased left a
will which was admitted to probate by the Court of First Instance of
the city of Manila on the 3rd day of February, 1906, and letters of
administration with the will annexed were issued to Benito Sy
Conbieng, the defendant in this case. On the 4th of June, 1909,
upon the application of the plaintiff in this case, a committee was
appointed by the Court of First Instance of the city of Manila to
appraise the estate of the said Pio de la Guardia Barretto, deceased,
and to hear claims presented against his estate. Thereafter and
within the time prescribed by law the plaintiff herein presented to
said committee a claim for the sum of P30,000 "based upon the fact
that the claim for the larger amount had been allowed in favor of the
estate of said Margarita Jose Sempco, deceased;" and based upon
the further fact "that the Court of First Instance had ordered the said
Doroteo Velasco, as administrator of the estate of said Mariano
Ocampo Lao Sempco, deceased, to pay the said claim if there were
funds sufficient to make such payment, but that it has not been paid
by the said Doroteo Velasco, or any part thereof," The claim so
presented against the estate of Pio de la Guardia Barretto,
deceased, was disallowed by the committee thereof. The plaintiff
herein within the time allowed by law appealed to the Court of First
Instance of the city of Manila from the order of the committee
disallowing said claim.
It is disputed in the case that all of the claims against the estate of
Mariano Ocampo were fully paid and satisfied at the time of the
partition of said estate, with the exception of the alleged claim
arising by virtue of his having been a surety of the default Palanca. It
nowhere appears in the evidence or the record exactly when this
claim arose it may be inferred from the time of presentation in 1909,
and we have no means of determining whether the defalcation
represented by the said claim occurred before or after the
substitution of sureties herefore referred to.
Upon these facts it was contended by counsel for plaintiff that the
judgment should be rendered in his favor for the sum of P30,000,
with costs, while counsel of defendant contended that upon said
facts judgment should be rendered in favor of defendant, dismissing
the complaint, with costs. The court having heard the evidence and
the arguments of counsel, rendered judgment in favor of the
defendant and against the plaintiff, dismissing the complaint upon
merits, without costs. This appeal is from that judgment.
We are of the opinion that the judgment must be affirmed. We base
our affirmance upon the ground that Doroteo Velasco, for whom the
deceased Pio de la Guardia Barretto was surety, would not have
been liable himself had this action been commenced against him. If
the principal is not liable upon the obligation, the surety cannot be.
At the head of the law of administration of the Philippine Islands
stands sections 596 and 597 of the Code of Civil Procedure. They
are as follows:
SEC. 596. Settlement of intestate estates, without legal proceedings,
in certain cases. — Whatever all the heirs of a deceased person are
of lawful age and legal capacity, and their are no debts due from the
intestate estate, or all the debts have been paid by the heirs, the
heirs may, by a family council as shown under Spanish law, or by
agreement between themselves, duly executed in writing, apportion
and divide the estate among themselves, as they may see fit,
without proceedings in court.

SEC. 597. In such case distributees liable for debts. — But if it shall
appear, at any time within two years after such settlement and
distribution of the estate, that there are debts outstanding against
the estate which have not been paid, any creditor may compel the
settlement of the estate in the courts in the manner hereinafter
provided, unless his debt shall be paid, with interest; and the
administrator appointed by the court may recover the assets of the
estate from those who have received them, for the purpose of
paying the debts; and the real estate belonging to the deceased
shall remain charged with the liability to creditors for the full period of
two years after such distribution, notwithstanding any transfers
thereof that may have been made.
These sections provide for the voluntary division of the whole
property of the decedent without proceedings in court. The
provisions which they contain are extremely important. The wisdom
which underlies them is apparent. It is the undisputed policy of every
people which maintains the principle of private ownership of property
that he who owns a thing shall not be deprived of its possession or
use except for the most urgent and imperative reason and then only
so long as is necessary to make the rights which underlie those
reasons effective. It is a principle of universal acceptance which
declares that one has the instant right to occupy and use that which
he owns, and it is only in the presence of reasons of the strongest
and most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which gave
birth to this stern and imperious principle is the same force which
destroyed the feudal despotism and created the democracy of
private owners.
These provisions should, therefore, be given the most liberal
construction so that the intent of the framers may be fully carried out.
They should not be straitened or narrowed but should rather be
given that wideness and fullness of application without which they
cannot produce their most beneficial effects.
Standing, as we have said, at the head of the law of administration
of these Islands, they are the first provisions to which our attention is
directed in seeking a legal method for the division and distribution of
the property of deceased persons. They are thus made prominent.
And justly so. The purpose which underlies them, as we have
already intimated, is to put into one's hands the property which
belongs to him not only at the earliest possible moment but also with
the least possible expense. By permitting the partition and division
without proceedings in court no time is lost and substantially all
expense and waste are saved. This is as it should be. The State fails
wretchedly in its duty to its citizens if the machinery furnished by it
for the division and distribution of the property of a decedent is no
cumbersome, unwidely and expensive that a considerable portion of
the estate is absorbed in the process of such division. Where
administration is necessary, it ought to be accomplished quickly and
at very small expense; and a system which consumes any
considerable portion of the property which it was designed to
distribute is a failure. It being undoubted that the removal of property
from the possession of its owner and its deposit in the hands of
another for administration is a suspension of some of its most
important rights of property and is attended with an expense
sometimes entirely useless and unnecessary, such procedure
should be avoided whenever and wherever possible.
In the case at the bar we are of the opinion that, under the broad
and liberal policy which we must adopt in the interpretation and
application of the provisions referred to, the decision of the property
of Mariano Ocampo, deceased, in the form, in the manner and for
the purposes expressed, falls within the provisions of said sections
and may be termed, therefore, and we hold it to be, a partition of the
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 30
CODAL PROVISIONS and COMPILATION OF CASES
property of a decedent without legal proceedings within the meaning
of those sections. The fact of the prior appointment of an
administrator and the filing of an inventory before such partition is of
no consequence so far as the right of the owners to partition is
concerned. The only requisite for such petition prescribed by the law
is that "there are no debts . . . or all the debts have been paid by the
heirs." When the condition is fulfilled the partition can take place, no
matter what stage the administration may have reached. By this it is,
of course, not meant that the partition after the appointment of an
administrator will interfere with the rights acquired by third person
dealing with said administrator within the limits of his authority and
prior to the partition; nor that the administrator can be deprived of
the property of which he is legally in possession without proper
proceedings and the consent of the court.
As we have already indicated, the basis of the liability of a surety on
an administrators' bond is the fault or failure of the principal. The
liability of the principal precedes that of the surety. If Velasco
incurred no liability, then his surety incurred none. The question that
naturally suggests itself is, then, In what was Velasco at fault or in
what did he fail? When the persons interested in the estate of
Mariano Ocampo agreed voluntarily upon a partition and division of
the property of said estate and the actual partition followed, the
matter passed out of the hands of Velasco as administrator. The
parties to the partition stood invoking their rights under section 596
and 597. Velasco was helpless. He was powerless to prevent the
parties from taking the property to which they were entitled under the
agreement, it being conceded that they were actually entitled thereto
in law. Those sections were applicable to the situation and there was
nothing that Velasco could do to prevent the estate from being
divided according to their provisions. In giving his consent to the
partition and in assisting the parties to obtain the approval of the
court thereto he did no wrong. He simply aided in carrying out the
provisions of the sections referred to. It is a universal principle that
one who follows a law commits no fault, incurs no failure and
wounds no rights. If one obeys the law he is free not only in person
but in property. Observance of the law discharges obligations; it
does not create them; and an obligation once discharged cannot be
re-acted by the act of others in which the person as to whom it was
discharged takes no part. The proceedings under sections referred
to were, after the partition was actually made and the property duly
turned over the administrator under the proper proceedings, a
complete settlement of the estate of Mariano Ocampo, deceased, as
it then stood, so far as the administrator was concerned. Nothing
further needed to be done. Every duty which Velasco owed up to the
time of the partition had been met. All debts presented or known had
been paid. The court had given it approbation to the delivery of the
property by the administrator to the partitioning parties. Every
obligation which lay upon him had been removed. Nor could there
arise against him any obligation in the future in relation to the same
property. The instant that the partition occurred, in the form and
manner stated, he stood stripped of all responsibility to the estate, to
its creditors, to the heirs and to the court. He stood divested o every
official duty and obligation, as fully as before his appointment — as
completely as if he had not been appointed at all. In law, therefore,
he was no longer administrator with the will annexed of the estate of
Mariano Ocampo, deceased. He was in effect, discharged. As to him
the estate had been wiped out as a legal entity. It had ceased to
exist. And, while at any time within two years after the partition the
property, or a portion thereof, then in the possession of the
partitioning persons could have been placed in administration upon
the happening of certain events, it would not have been the same
estate that had been represented by Velasco, nor would Velasco
have been the administrator of the estate by virtue of his
appointment in the old. It would have been necessary for the court,
upon the proper application setting forth the conditions prescribed by
the sections, to appoint another administrator for the purposes

specified therein. It might have been Velasco, if he would have
accepted the appointment, or it might have been another. The point
is that it would have been necessary to appoint a new
administrator just as if one had not been named before. The new
administrator would have had new duties, some of which would have
been quite different from those of the administrator appointed
originally. He would have had different sureties, who would have
found themselves to different obligations.
That on the partition under said section the estate was, in this case,
completely wiped out and the administrator as completely
discharged cannot be doubted for the following reasons:
1. The whole estate was, by virtue of these sections, taken from the
administrator and turned over to the partitioning persons. No security
was required or given for its safekeeping or return.
2. The persons to whom the estate was thus turned over became
absolute owners of the same, subject to be devastated, wholly or
only partly, on the happening of certain events and the taking of
certain proceedings thereon. But even such divestiture could not
have been avoided by the payment by the parties, or any of them, of
the debt which was the moving cause thereof.
From these premises it is the merest conclusion to say that the
decedent's estate was merged in their partitioning parties; and this
no matter whether the partition occurred before or after the
appointment of an administrator. When one has been named to
perform certain acts in relation to a given thing, and before said acts
have been begun, or, having been begun, are completed, the
appointing power has placed the thing upon which those acts were
to operate wholly beyond the possession, jurisdiction and control of
the one so appointed, there is a complete revocation of such
appointment, so far as all subsequent acts are concerned. An
administrator cannot be held to any accountability for property over
which he has absolutely no power or jurisdiction and in which he has
not the slightest legal interest. The thing on which he was appointed
to operate having been withdrawn wholly beyond his ken by the very
power (the law) which appointed him, there is a complete revocation
of the appointment.
Moreover, the sureties of an administrator so appointed can not be
held liable for property which by force of law has been taken from
the principal and its ownership and control turned over to others.
Their obligation is that their principal shall obey the law in the
handling and distribution of the estate. Their obligation is discharged
when the estate is legally turned over to those entitled thereto. The
law requires the principal to turn it over to those who bring
themselves within the provisions of section 596. Having turned over
the whole estate under the compelling power of the law, his
obligation ceased. The responsibility of the sureties ceased at the
same time. Without their consent another obligation could not be
imposed upon them in relation to the same principal, and the same
property, or apart thereof, especially after the lapse of two years.
Their undertaking was that their principal should discharge one
obligation, not two.
It requires no argument to demonstrate that the duties and
obligations imposed upon an administrator appointed under section
597 might and probably would be different in many respects from
those of an administrator appointed in the first instance; and that,
therefore, the obligation of his sureties would not be the same as
that of the sureties of the administrator appointed originally. The
administration contemplated by section 597 is a new administration
and one entirely apart from any other administration theretofore had.
This section requires the appointment of a new administrator, with a
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CODAL PROVISIONS and COMPILATION OF CASES
new undertaking. The administration under the section is distinct and
separate from any administration which may have been in progress
at the time of the partition and division under section 596. This is
clear for the following reasons:
After the partition and division provided for in sections 596 and 597
have been fully consummated, no further administration of the estate
can be had unless there occur the following requisites:
1. There must have been discovered a claim against the estate
"within two years after such settlement and distribution of estate."
2. The creditor holding the claim must be the person who moves the
court for the appointment of an administrator.
If those requisites are lacking, there can be no administration. When
one fails the right too such administration does not arise and any
person intersted in the estate may oppose any effort to administer
under such circumstances. These requisites combined are that and
that alone which give to the administrator when appointed the right
to recover the assets from the persons who received them on the a
partition. Indeed, if these requisites are lacking no administrator can
lawfully be appointed, and, if improperly appointed, he fails of legal
power to maintain an action to recover the assets in the hands of
those among whom they have partitioned; in other words, he is
powerless to administer. If these requisites fail, then the real estate
in the hands either of the persons among whom it has been
partitioned or of their assignees is free from the lien created by
section 597 and any attempt to enforce such lien can be
successfully opposed by any person interested in such property. The
appointment of an administrator without the concurrence of these
requisites is without warrant of law and the appointee is powerless to
perform any act of administration. The statute must be strictly
complied with in every essential before it operates. Every essential
requirements must be fulfilled before it will be permitted that a
partition which has the clear sanction of the law and which is strictly
in accord with the public policy of the estate shall be set aside and
destroyed with all the evil consequences thereby entailed.
It is necessary deduction from the provisions of the sections
mentioned that the appointment of an administrator ought not to be
permitted, even when the requisites above mentioned occur, unless
the heirs or the persons among whom the property was partitioned
have been given an opportunity to be heard on that application. It
would be extremely unusual to proceed to the appointment of an
administrator under section 597, by virtue of a debt which had been
discovered after the partition and division, without giving the heirs an
opportunity to avoid such administration by the payment of the debt,
it being kept in view that the object of the law in originally giving the
right to pay the debts and having partition without proceedings in
court was to avoid that every administration. Such a proceeding
would be unusual and irrational. Such a course would be in direct
opposition to the purposes which animated the provisions
authorizing the original partition.
(1) In the case at bar no debt was discovered during the prescribed
period. It was nearly four years after the partition of the estate and
the taking possession by the heirs of their respective portions before
it was even discovered that Palanca had been guilty of converting
the property of the estate to his own use; and, so far as the records
shows, it was nearly five years before the alleged claim against the
estate of Mariano Ocampo was fixed.
(2) No creditor made his application.

The requirements of section 597 not having been met, there could
be no administration under section. Therefore, the appointment of
commissioners for the hearing of the claim against the estate of
Mariano Ocampo presented by the plaintiff in this case was an
appointment without warrant or authority of law. It was appointment
in respect to an estate that did not exist and in relation to an
administration that had never been inaugurated. Under section 597
the commencement of the administration is the application of the
creditor and the appointment of the administrator pursuant to such
application. Without such appointment there is no administration. As
we have before stated, when the property was partitioned a
described heretofore, the estate, as such, ceased to exist and the
administration thereof by Doroteo Velasco was wiped out. There
was no administrator to carry on the administration. By operation of
the law the estate had been passed on the heirs who had become
the absolute owners of it. They were subject to the orders of the old
administrator and they held rights inferior to no one. To be sure, as
we have already stated, those rights might be modified to a certain
extent by the happening of subsequent events; but until those
events transpired their rights were absolute. Those conditions never
having been met, a fact admitted by both parties in the case at bar,
there was absolutely no estate at all, much less one in the process
of administration, at the time the commissioners were appointed to
her the claim for P30,000 presented against the estate of Mariano
Ocampo, deceased, by the plaintiff herein. Add to this the fact that
there was no administrator of said estate in extense at the time, and
we have before us the absurdity of the appointment of the
commissioners to report on a claim against an estate which did not
exist and under the direction of an administrator that had never been
appointed.
The necessary conclusion is that the appointment of commissioners
to hear the claim above referred to was beyond the powers of the
court and was without jurisdiction. The finding of the commissioners
had no force or effect. It gave no right against the estate and none
against the so-called administrator.
It must be remembered that it is only debts discovered within the
prescribed period that can be made the reason for an administration
of the estate subsequent to its partition. The necessary result is t hat
a debt not discovered within that period cannot be made the reason
for an administration of the estate. The debt in the case at bar
having first discovered more than four years after the partition of the
estate of Mariano Ocampo, deceased, an administrator, even
though appointed under section 57, would not no authority in law,
over the objection of one interested, to pay the debt in question or to
maintain an action or other proceeding for the recovery of property
for that purpose. This section creates a statute of limitations which
deprives all debts which are not discovered within the prescribed
time of the power of requiring an administration of the estate. The
administration of the estate after the partition under the law has
been accomplished depends upon the discovery of the debt "at any
time within two years after such settlement and distribution of the
estate." The law does not operate unless that discovery is made
within the time prescribed.
We have not overlooked the contention that at the time this partition
took place there was a contingent claim against the estate
partitioned, namely, the claim which would arise on the contingency
that the administrator for whom Mariano Ocampo was surety might
default or otherwise fail to perform his duties thus rendering Mariano
Ocampo liable on his bond; and that contingent claim, being one
expressly recognized by sections 746 to 749 of the Code of Civil
Procedure as a claim entirely proper to present, no partition of this
estate under section 596 and 597 was legally possible until such
claim was provided for by the petitioning parties. This contention
goes upon the assumption that a partition under the sections of the
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 32
CODAL PROVISIONS and COMPILATION OF CASES
Code of Civil Procedure so often referred to is void
unless every debt is paid or provided for by the petitioning parties,
and may therefore be entirely disregarded by the creditor holding a
claim either unpaid or provided for. We do not believe that this
assumption is warranted. In the first place, we must remember that
the partition proceedings in question are proceedings out of court.
Consequently there is no prescribed method of ascertaining and
settling claims. The appointment of commissioners, the publication
of notice to creditors, and all the other proceedings necessary in
cases of administration in court are not required in partition out of
court. The law is silent as to how the claims are to be ascertained,
presented and determined. We must assume, therefore, that the
method of ascertaining them and determining their validity was left to
the good sense and sound judgment of the persons concerned.
Usually no difficulty will be experienced in solving the problem
presented by this conclusion. It is obvious that creditors always
know who owes them and that debtors generally know whom they
owe. It is equally obvious that, generally speaking, a creditor is one
of the first to learn of the death of the debtor, and that heirs of the
latter are the first to begin to calculate how much of his property they
are to receive. This cannot be known until the debts are determined.
The heirs know they cannot escape payment of the debts. A
surreptitious division behind the backs of the creditors would not
avail as the latter have two years thereafter in which to throw at least
a portion of the estate into administration and thereby nullify the
attempt to overreach them. Even the transfer by the partitioning
persons of the property received on the partition to third persons
would not profit them, inasmuch as the consideration received on
such transfer would, if necessary, be subject to seizure to pay the
debt presented and the real estate would go into the hands of the
vendees charged with the lien of said debt.
The method of ascertaining claims against the defendant's estate
not being prescribed, it is apparent that no objection to a partition
can be urged by a creditor whose claim has not been paid, due to
the faulty method adopted by the partitioning parties to ascertain
claims, or, even, the absence of any effort at all to ascertain them.
In the second place, it must be on served that express provisions is
made by sections 596 and 597 for the payment of a claim
discovered by them or presented after the partition. That is one of
the main provisions. It is a necessary deduction, therefore, that it
was not the intention of the law to pronounce the partition void of no
effect simply because not all of the debts were paid before the
partition was made. The fact of non payment cannot, then, because
by the creditor as a reason for attacking the partition directly; that is,
by asserting that, inasmuch as a payment of all the debts is a
condition precedent to the right of partition, such partition cannot
legally and validly take place while a debt is outstanding. While a
partition manifestly fraudulent in inception and result might possibly
be attacked directly by an action to set aside, a question which we
do not discuss or decide, the manner of attacking the partition
prescribed by the law is the one, generally speaking, preferably to
be followed; and that is to throw into administration so much of the
estate as is necessary to pay the outstanding claim. The method,
though indirect, accomplishes a better result than a direct attack.
The latter, by destroying the validity of the partition, would throw the
whole situation into confusion and uncertainty, something always to
be avoided. The former does not produce that result. Where there is
no fraud, and possibly where there is, a direct attack on the partition
is impossible under the provisions under discussion. A claim
discovered and presented within the two years serves not to destroy,
primarily, the partition. It does not even permit the whole estate to be
thrown into administration. Only such portion as is necessary to pay
the discovered debt can be administered. This is apparent when it is
observed that on such administration the administrator is authorized
to recover only the amount of property necessary to pay the debt

presented, leaving the partitioning parties in undisturbed possession
of the remainder. Moreover, the partitioning parties may still pay the
debt and preserve undisturbed the partition in all it parts and thus
assure and maintain the rights of the parties thereunder. The mere
fact, therefore, that a creditor was not paid before the partition took
place furnishes no ground for a revocation of the partition. It simply
provides a fact which he may urge as a reason for the appointment
of an administrator and the consequent administration of so much of
the estate as may be necessary to pay the debt discovered.
But, as already seen, in order that it be a reason for such
appointment and administration, the claim must be presented within
two years from the date of the partition and distribution.
Summarizing, we have seen that lack of opportunity, either by want
of notice or otherwise, and the consequent failure to present a claim
before partition, is, under the sections we are discussing, of no
consequence whatever in so far as the validity of the partition is
concerned.
We have also seen that the fact that there were debts outstanding
and unpaid at the time the partition took place is of no importance so
far as the validity of the partition is concerned, leaving out account
the question of fraud to which we have already adverted and left
undecided.
We have also seen that the fact such claim exists and is valid and
subsistent against the estate is of no consequence whatever with
respect to the right of its holder to require an administration of the
estate unless such claim is discovered and presented within two
years.
The fact that the claim in the case at bar was, during a certain
period, a contingent one is of no importance. The sections under
discussion make no distinction between claims.
The creditor himself is not without duties. In the case at bar it was
five years after the petition before the alleged creditor made any
attempt whatsoever to "discover" or present his claim. He knew of
the death of Ocampo very soon after it occurred. He knew that it was
among the possibilities that Ocampo's estate might be called upon to
respond for the failure of Palanca to perform his duty as
administrator. It was his duty to see to it that he would be protected
in that event. Nevertheless he permitted the estate of Ocampo to be
partitioned and distributed without protest and without the
presentation of his contingent claim, and sat quiet and passive for
nearly five years thereafter knowing that it was very probable that
the property of the estate was being consumed, incumbered, and
transferred by the persons among whom it had been distributed.
The judgment appealed from is hereby affirmed, without special
finding as to costs.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 33
CODAL PROVISIONS and COMPILATION OF CASES
HILADO v. CA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 164108 May 8, 2009
ALFREDO HILADO, LOPEZ SUGAR CORPORATION, FIRST
FARMERS HOLDING CORPORATION, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THE HONORABLE
AMOR A. REYES, Presiding Judge, Regional Trial Court of
Manila, Branch 21 and ADMINISTRATRIX JULITA CAMPOS
BENEDICTO, Respondents.
DECISION
TINGA, J.:
The well-known sugar magnate Roberto S. Benedicto died intestate
on 15 May 2000. He was survived by his wife, private respondent
Julita Campos Benedicto (administratrix Benedicto), and his only
daughter, Francisca Benedicto-Paulino.1 At the time of his death,
there were two pending civil cases against Benedicto involving the
petitioners. The first, Civil Case No. 95-9137, was then pending with
the Regional Trial Court (RTC) of Bacolod City, Branch 44, with
petitioner Alfredo Hilado as one of the plaintiffs therein. The second,
Civil Case No. 11178, was then pending with the RTC of Bacolod
City, Branch 44, with petitioners Lopez Sugar Corporation and First
Farmers Holding Corporation as one of the plaintiffs therein.2
On 25 May 2000, private respondent Julita Campos Benedicto filed
with the RTC of Manila a petition for the issuance of letters of
administration in her favor, pursuant to Section 6, Rule 78 of the
Revised Rules of Court. The petition was raffled to Branch 21,
presided by respondent Judge Amor A. Reyes. Said petition
acknowledged the value of the assets of the decedent to be ₱5
Million, "net of liabilities."3 On 2 August 2000, the Manila RTC issued
an order appointing private respondent as administrator of the estate
of her deceased husband, and issuing letters of administration in her
favor.4 In January 2001, private respondent submitted an Inventory
of the Estate, Lists of Personal and Real Properties, and Liabilities of
the Estate of her deceased husband.5 In the List of Liabilities
attached to the inventory, private respondent included as among the
liabilities, the above-mentioned two pending claims then being
litigated before the Bacolod City courts.6 Private respondent stated
that the amounts of liability corresponding to the two cases as
₱136,045,772.50 for Civil Case No. 95-9137 and ₱35,198,697.40 for
Civil Case No. 11178.7 Thereafter, the Manila RTC required private
respondent to submit a complete and updated inventory and
appraisal report pertaining to the estate.8
On 24 September 2001, petitioners filed with the Manila RTC a
Manifestation/Motion Ex Abundanti Cautela,9praying that they be
furnished with copies of all processes and orders pertaining to the
intestate proceedings. Private respondent opposed the
manifestation/motion, disputing the personality of petitioners to
intervene in the intestate proceedings of her husband. Even before
the Manila RTC acted on the manifestation/motion, petitioners filed

an omnibus motion praying that the Manila RTC set a deadline for
the submission by private respondent of the required inventory of the
decedent’s estate.10 Petitioners also filed other pleadings or motions
with the Manila RTC, alleging lapses on the part of private
respondent in her administration of the estate, and assailing the
inventory that had been submitted thus far as unverified, incomplete
and inaccurate.
On 2 January 2002, the Manila RTC issued an order denying the
manifestation/motion, on the ground that petitioners are not
interested parties within the contemplation of the Rules of Court to
intervene in the intestate proceedings.11 After the Manila RTC had
denied petitioners’ motion for reconsideration, a petition for certiorari
was filed with the Court of Appeals. The petition argued in general
that petitioners had the right to intervene in the intestate proceedings
of Roberto Benedicto, the latter being the defendant in the civil
cases they lodged with the Bacolod RTC.
On 27 February 2004, the Court of Appeals promulgated a
decision12 dismissing the petition and declaring that the Manila RTC
did not abuse its discretion in refusing to allow petitioners to
intervene in the intestate proceedings. The allowance or
disallowance of a motion to intervene, according to the appellate
court, is addressed to the sound discretion of the court. The Court of
Appeals cited the fact that the claims of petitioners against the
decedent were in fact contingent or expectant, as these were still
pending litigation in separate proceedings before other courts.
Hence, the present petition. In essence, petitioners argue that the
lower courts erred in denying them the right to intervene in the
intestate proceedings of the estate of Roberto Benedicto.
Interestingly, the rules of procedure they cite in support of their
argument is not the rule on intervention, but rather various other
provisions of the Rules on Special Proceedings.13
To recall, petitioners had sought three specific reliefs that were
denied by the courts a quo. First, they prayed that they be
henceforth furnished "copies of all processes and orders issued" by
the intestate court as well as the pleadings filed by administratrix
Benedicto with the said court.14 Second, they prayed that the
intestate court set a deadline for the submission by administratrix
Benedicto to submit a verified and complete inventory of the estate,
and upon submission thereof, order the inheritance tax appraisers of
the Bureau of Internal Revenue to assist in the appraisal of the fair
market value of the same.15 Third, petitioners moved that the
intestate court set a deadline for the submission by the administrator
of her verified annual account, and, upon submission thereof, set the
date for her examination under oath with respect thereto, with due
notice to them and other parties interested in the collation,
preservation and disposition of the estate.16
The Court of Appeals chose to view the matter from a perspective
solely informed by the rule on intervention. We can readily agree
with the Court of Appeals on that point. Section 1 of Rule 19 of the
1997 Rules of Civil Procedure requires that an intervenor "has a
legal interest in the matter in litigation, or in the success of either of
the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in
the custody of the court x x x" While the language of Section 1, Rule
19 does not literally preclude petitioners from intervening in the
intestate proceedings, case law has consistently held that the legal
interest required of an intervenor "must be actual and material, direct
and immediate, and not simply contingent and expectant."17
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 34
CODAL PROVISIONS and COMPILATION OF CASES
Nonetheless, it is not immediately evident that intervention under the
Rules of Civil Procedure necessarily comes into operation in special
proceedings. The settlement of estates of deceased persons fall
within the rules of special proceedings under the Rules of
Court,18 not the Rules on Civil Procedure. Section 2, Rule 72 further
provides that "[i]n the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable,
applicable to special proceedings."
We can readily conclude that notwithstanding Section 2 of Rule 72,
intervention as set forth under Rule 19 does not extend to creditors
of a decedent whose credit is based on a contingent claim. The
definition of "intervention" under Rule 19 simply does not
accommodate contingent claims.
Yet, even as petitioners now contend before us that they have the
right to intervene in the intestate proceedings of Roberto Benedicto,
the reliefs they had sought then before the RTC, and also now
before us, do not square with their recognition as intervenors. In
short, even if it were declared that petitioners have no right to
intervene in accordance with Rule 19, it would not necessarily mean
the disallowance of the reliefs they had sought before the RTC since
the right to intervene is not one of those reliefs.
To better put across what the ultimate disposition of this petition
should be, let us now turn our focus to the Rules on Special
Proceedings.
In several instances, the Rules on Special Proceedings entitle "any
interested persons" or "any persons interested in the estate" to
participate in varying capacities in the testate or intestate
proceedings. Petitioners cite these provisions before us, namely: (1)
Section 1, Rule 79, which recognizes the right of "any person
interested" to oppose the issuance of letters testamentary and to file
a petition for administration;" (2) Section 3, Rule 79, which mandates
the giving of notice of hearing on the petition for letters of
administration to the known heirs, creditors, and "to any other
persons believed to have interest in the estate;" (3) Section 1, Rule
76, which allows a "person interested in the estate" to petition for the
allowance of a will; (4) Section 6 of Rule 87, which allows an
individual interested in the estate of the deceased "to complain to
the court of the concealment, embezzlement, or conveyance of any
asset of the decedent, or of evidence of the decedent’s title or
interest therein;" (5) Section 10 of Rule 85, which requires notice of
the time and place of the examination and allowance of the
Administrator’s account "to persons interested;" (6) Section 7(b) of
Rule 89, which requires the court to give notice "to the persons
interested" before it may hear and grant a petition seeking the
disposition or encumbrance of the properties of the estate; and (7)
Section 1, Rule 90, which allows "any person interested in the
estate" to petition for an order for the distribution of the residue of
the estate of the decedent, after all obligations are either satisfied or
provided for.
Had the claims of petitioners against Benedicto been based on
contract, whether express or implied, then they should have filed
their claim, even if contingent, under the aegis of the notice to
creditors to be issued by the court immediately after granting letters
of administration and published by the administrator immediately
after the issuance of such notice.19 However, it appears that the
claims against Benedicto were based on tort, as they arose from his
actions in connection with Philsucom, Nasutra and Traders Royal
Bank. Civil actions for tort or quasi-delict do not fall within the class
of claims to be filed under the notice to creditors required under Rule
86.20 These actions, being as they are civil, survive the death of the
decedent and may be commenced against the administrator

pursuant to Section 1, Rule 87. Indeed, the records indicate that the
intestate estate of Benedicto, as represented by its administrator,
was successfully impleaded in Civil Case No. 11178, whereas the
other civil case21 was already pending review before this Court at the
time of Benedicto’s death.
Evidently, the merits of petitioners’ claims against Benedicto are to
be settled in the civil cases where they were raised, and not in the
intestate proceedings. In the event the claims for damages of
petitioners are granted, they would have the right to enforce the
judgment against the estate. Yet until such time, to what extent may
they be allowed to participate in the intestate proceedings?
Petitioners place heavy reliance on our ruling in Dinglasan v. Ang
Chia,22 and it does provide us with guidance on how to proceed. A
brief narration of the facts therein is in order. Dinglasan had filed an
action for reconveyance and damages against respondents, and
during a hearing of the case, learned that the same trial court was
hearing the intestate proceedings of Lee Liong to whom Dinglasan
had sold the property years earlier. Dinglasan thus amended his
complaint to implead Ang Chia, administrator of the estate of her late
husband. He likewise filed a verified claim-in-intervention,
manifesting the pendency of the civil case, praying that a co-
administrator be appointed, the bond of the administrator be
increased, and that the intestate proceedings not be closed until the
civil case had been terminated. When the trial court ordered the
increase of the bond and took cognizance of the pending civil case,
the administrator moved to close the intestate proceedings, on the
ground that the heirs had already entered into an extrajudicial
partition of the estate. The trial court refused to close the intestate
proceedings pending the termination of the civil case, and the Court
affirmed such action.
If the appellants filed a claim in intervention in the intestate
proceedings it was only pursuant to their desire to protect their
interests it appearing that the property in litigation is involved in said
proceedings and in fact is the only property of the estate left subject
of administration and distribution; and the court is justified in taking
cognizance of said civil case because of the unavoidable fact that
whatever is determined in said civil case will necessarily reflect and
have a far reaching consequence in the determination and
distribution of the estate. In so taking cognizance of civil case No. V-
331 the court does not assume general jurisdiction over the case but
merely makes of record its existence because of the close
interrelation of the two cases and cannot therefore be branded as
having acted in excess of its jurisdiction.
Appellants' claim that the lower court erred in holding in abeyance
the closing of the intestate proceedings pending determination of the
separate civil action for the reason that there is no rule or authority
justifying the extension of administration proceedings until after the
separate action pertaining to its general jurisdiction has been
terminated, cannot be entertained. Section 1, Rule 88, of the Rules
of Court, expressly provides that "action to recover real or personal
property from the estate or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or
personal, may be commenced against the executor or
administrator." What practical value would this provision have if the
action against the administrator cannot be prosecuted to its
termination simply because the heirs desire to close the intestate
proceedings without first taking any step to settle the ordinary civil
case? This rule is but a corollary to the ruling which declares that
questions concerning ownership of property alleged to be part of the
estate but claimed by another person should be determined in a
separate action and should be submitted to the court in the exercise
of its general jurisdiction. These rules would be rendered nugatory if
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 35
CODAL PROVISIONS and COMPILATION OF CASES
we are to hold that an intestate proceedings can be closed by any
time at the whim and caprice of the heirs x x x23(Emphasis supplied)
[Citations omitted]
It is not clear whether the claim-in-intervention filed by Dinglasan
conformed to an action-in-intervention under the Rules of Civil
Procedure, but we can partake of the spirit behind such
pronouncement. Indeed, a few years later, the Court, citing
Dinglasan, stated: "[t]he rulings of this court have always been to the
effect that in the special proceeding for the settlement of the estate
of a deceased person, persons not heirs, intervening therein to
protect their interests are allowed to do so to protect the same, but
not for a decision on their action."24
Petitioners’ interests in the estate of Benedicto may be inchoate
interests, but they are viable interests nonetheless. We are mindful
that the Rules of Special Proceedings allows not just creditors, but
also "any person interested" or "persons interested in the estate"
various specified capacities to protect their respective interests in
the estate. Anybody with a contingent claim based on a pending
action for quasi-delict against a decedent may be reasonably
concerned that by the time judgment is rendered in their favor, the
estate of the decedent would have already been distributed, or
diminished to the extent that the judgment could no longer be
enforced against it.
In the same manner that the Rules on Special Proceedings do not
provide a creditor or any person interested in the estate, the right to
participate in every aspect of the testate or intestate proceedings,
but instead provides for specific instances when such persons may
accordingly act in those proceedings, we deem that while there is no
general right to intervene on the part of the petitioners, they may be
allowed to seek certain prayers or reliefs from the intestate court not
explicitly provided for under the Rules, if the prayer or relief sought is
necessary to protect their interest in the estate, and there is no other
modality under the Rules by which such interests can be protected.
It is under this standard that we assess the three prayers sought by
petitioners.
The first is that petitioners be furnished with copies of all processes
and orders issued in connection with the intestate proceedings, as
well as the pleadings filed by the administrator of the estate. There is
no questioning as to the utility of such relief for the petitioners. They
would be duly alerted of the developments in the intestate
proceedings, including the status of the assets of the estate. Such a
running account would allow them to pursue the appropriate
remedies should their interests be compromised, such as the right,
under Section 6, Rule 87, to complain to the intestate court if
property of the estate concealed, embezzled, or fraudulently
conveyed.
At the same time, the fact that petitioners’ interests remain inchoate
and contingent counterbalances their ability to participate in the
intestate proceedings. We are mindful of respondent’s submission
that if the Court were to entitle petitioners with service of all
processes and pleadings of the intestate court, then anybody
claiming to be a creditor, whether contingent or otherwise, would
have the right to be furnished such pleadings, no matter how
wanting of merit the claim may be. Indeed, to impose a precedent
that would mandate the service of all court processes and pleadings
to anybody posing a claim to the estate, much less contingent
claims, would unduly complicate and burden the intestate
proceedings, and would ultimately offend the guiding principle of
speedy and orderly disposition of cases.

Fortunately, there is a median that not only exists, but also has been
recognized by this Court, with respect to the petitioners herein, that
addresses the core concern of petitioners to be apprised of
developments in the intestate proceedings. In Hilado v. Judge
Reyes,25 the Court heard a petition for mandamus filed by the same
petitioners herein against the RTC judge, praying that they be
allowed access to the records of the intestate proceedings, which
the respondent judge had denied from them. Section 2 of Rule 135
came to fore, the provision stating that "the records of every court of
justice shall be public records and shall be available for the
inspection of any interested person x x x." The Court ruled that
petitioners were "interested persons" entitled to access the court
records in the intestate proceedings. We said:
Petitioners' stated main purpose for accessing the records to—
monitor prompt compliance with the Rules governing the
preservation and proper disposition of the assets of the estate, e.g.,
the completion and appraisal of the Inventory and the submission by
the Administratrix of an annual accounting—appears legitimate, for,
as the plaintiffs in the complaints for sum of money against Roberto
Benedicto, et al., they have an interest over the outcome of the
settlement of his estate. They are in fact "interested persons" under
Rule 135, Sec. 2 of the Rules of Court x x x26
Allowing creditors, contingent or otherwise, access to the records of
the intestate proceedings is an eminently preferable precedent than
mandating the service of court processes and pleadings upon them.
In either case, the interest of the creditor in seeing to it that the
assets are being preserved and disposed of in accordance with the
rules will be duly satisfied. Acknowledging their right to access the
records, rather than entitling them to the service of every court order
or pleading no matter how relevant to their individual claim, will be
less cumbersome on the intestate court, the administrator and the
heirs of the decedent, while providing a viable means by which the
interests of the creditors in the estate are preserved.1awphi1
Nonetheless, in the instances that the Rules on Special Proceedings
do require notice to any or all "interested parties" the petitioners as
"interested parties" will be entitled to such notice. The instances
when notice has to be given to interested parties are provided in: (1)
Sec. 10, Rule 85 in reference to the time and place of examining and
allowing the account of the executor or administrator; (2) Sec. 7(b) of
Rule 89 concerning the petition to authorize the executor or
administrator to sell personal estate, or to sell, mortgage or
otherwise encumber real estates; and; (3) Sec. 1, Rule 90 regarding
the hearing for the application for an order for distribution of the
estate residue. After all, even the administratrix has acknowledged
in her submitted inventory, the existence of the pending cases filed
by the petitioners.
We now turn to the remaining reliefs sought by petitioners; that a
deadline be set for the submission by administratrix Benedicto to
submit a verified and complete inventory of the estate, and upon
submission thereof: the inheritance tax appraisers of the Bureau of
Internal Revenue be required to assist in the appraisal of the fair
market value of the same; and that the intestate court set a deadline
for the submission by the administratrix of her verified annual
account, and, upon submission thereof, set the date for her
examination under oath with respect thereto, with due notice to them
and other parties interested in the collation, preservation and
disposition of the estate. We cannot grant said reliefs.
Section 1 of Rule 83 requires the administrator to return to the court
a true inventory and appraisal of all the real and personal estate of
the deceased within three (3) months from appointment, while
Section 8 of Rule 85 requires the administrator to render an account
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 36
CODAL PROVISIONS and COMPILATION OF CASES
of his administration within one (1) year from receipt of the letters
testamentary or of administration. We do not doubt that there are
reliefs available to compel an administrator to perform either duty,
but a person whose claim against the estate is still contingent is not
the party entitled to do so. Still, even if the administrator did delay in
the performance of these duties in the context of dissipating the
assets of the estate, there are protections enforced and available
under Rule 88 to protect the interests of those with contingent claims
against the estate.
Concerning complaints against the general competence of the
administrator, the proper remedy is to seek the removal of the
administrator in accordance with Section 2, Rule 82. While the
provision is silent as to who may seek with the court the removal of
the administrator, we do not doubt that a creditor, even a contingent
one, would have the personality to seek such relief. After all, the
interest of the creditor in the estate relates to the preservation of
sufficient assets to answer for the debt, and the general competence
or good faith of the administrator is necessary to fulfill such purpose.
All told, the ultimate disposition of the RTC and the Court of Appeals
is correct. Nonetheless, as we have explained, petitioners should not
be deprived of their prerogatives under the Rules on Special
Proceedings as enunciated in this decision.
WHEREFORE, the petition is DENIED, subject to the qualification
that petitioners, as persons interested in the intestate estate of
Roberto Benedicto, are entitled to such notices and rights as
provided for such interested persons in the Rules on Settlement of
Estates of Deceased Persons under the Rules on Special
Proceedings. No pronouncements as to costs.
SO ORDERED.
SHEKER v. ESTATE OF ALICE SHEKER
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157912 December 13, 2007
ALAN JOSEPH A. SHEKER, Petitioner,
vs.
ESTATE OF ALICE O. SHEKER, VICTORIA S. MEDINA-
Administratrix, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the Petition for Review on Certiorari seeking the
reversal of the Order1 of the Regional Trial Court of Iligan City,
Branch 6 (RTC) dated January 15, 2003 and its Omnibus Order
dated April 9, 2003.
The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker
and thereafter issued an order for all the creditors to file their
respective claims against the estate. In compliance therewith,
petitioner filed on October 7, 2002 a contingent claim for agent's
commission due him amounting to approximately ₱206,250.00 in the
event of the sale of certain parcels of land belonging to the estate,
and the amount of ₱275,000.00, as reimbursement for expenses
incurred and/or to be incurred by petitioner in the course of
negotiating the sale of said realties.
The executrix of the Estate of Alice O. Sheker (respondent) moved
for the dismissal of said money claim against the estate on the
grounds that (1) the requisite docket fee, as prescribed in Section
7(a), Rule 141 of the Rules of Court, had not been paid; (2)
petitioner failed to attach a certification against non-forum shopping;
and (3) petitioner failed to attach a written explanation why the
money claim was not filed and served personally.
On January 15, 2003, the RTC issued the assailed Order dismissing
without prejudice the money claim based on the grounds advanced
by respondent. Petitioner's motion for reconsideration was denied
per Omnibus Order dated April 9, 2003.
Petitioner then filed the present petition for review on certiorari,
raising the following questions:
(a) must a contingent claim filed in the probate proceeding contain a
certification against non-forum shopping, failing which such claim
should be dismissed?
(b) must a contingent claim filed against an estate in a probate
proceeding be dismissed for failing to pay the docket fees at the time
of its filing thereat?
(c) must a contingent claim filed in a probate proceeding be
dismissed because of its failure to contain a written explanation on
the service and filing by registered mail?2
Petitioner maintains that the RTC erred in strictly applying to a
probate proceeding the rules requiring a certification of non-forum
shopping, a written explanation for non-personal filing, and the
payment of docket fees upon filing of the claim. He insists that
Section 2, Rule 72 of the Rules of Court provides that rules in
ordinary actions are applicable to special proceedings only in a
suppletory manner.
The Court gave due course to the petition for review
on certiorari although directly filed with this Court, pursuant to
Section 2(c), Rule 41 of the Rules of Court.3
The petition is imbued with merit.
However, it must be emphasized that petitioner's contention that
rules in ordinary actions are only supplementary to rules in special
proceedings is not entirely correct.
Section 2, Rule 72, Part II of the same Rules of Court provides:
Sec. 2. Applicability of rules of Civil Actions. - In the absence of
special provisions, the rules provided for in ordinary actions shall
be, as far as practicable, applicable in special proceedings.
Stated differently, special provisions under Part II of the Rules of
Court govern special proceedings; but in the absence of special
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 37
CODAL PROVISIONS and COMPILATION OF CASES
provisions, the rules provided for in Part I of the Rules governing
ordinary civil actions shall be applicable to special proceedings, as
far as practicable.
The word "practicable" is defined as: possible to practice or perform;
capable of being put into practice, done or accomplished.4 This
means that in the absence of special provisions, rules in ordinary
actions may be applied in special proceedings as much as possible
and where doing so would not pose an obstacle to said proceedings.
Nowhere in the Rules of Court does it categorically say that rules in
ordinary actions are inapplicable or merely suppletory to special
proceedings. Provisions of the Rules of Court requiring a certification
of non-forum shopping for complaints and initiatory pleadings, a
written explanation for non-personal service and filing, and the
payment of filing fees for money claims against an estate would not
in any way obstruct probate proceedings, thus, they are applicable
to special proceedings such as the settlement of the estate of a
deceased person as in the present case.
Thus, the principal question in the present case is: did the RTC err in
dismissing petitioner's contingent money claim against respondent
estate for failure of petitioner to attach to his motion a certification
against non-forum shopping?
The Court rules in the affirmative.
The certification of non-forum shopping is required only for
complaints and other initiatory pleadings. The RTC erred in
ruling that a contingent money claim against the estate of a
decedent is an initiatory pleading. In the present case, the whole
probate proceeding was initiated upon the filing of the petition
for allowance of the decedent's will. Under Sections 1 and 5, Rule
86 of the Rules of Court, after granting letters of testamentary or of
administration, all persons having money claims against the
decedent are mandated to file or notify the court and the estate
administrator of their respective money claims; otherwise, they
would be barred, subject to certain exceptions.5
Such being the case, a money claim against an estate is more akin
to a motion for creditors' claims to be recognized and taken into
consideration in the proper disposition of the properties of the estate.
In Arquiza v. Court of Appeals,6the Court explained thus:
x x x The office of a motion is not to initiate new litigation, but to
bring a material but incidental matter arising in the progress of
the case in which the motion is filed. A motion is not an
independent right or remedy, but is confined to incidental matters
in the progress of a cause. It relates to some question that is
collateral to the main object of the action and is connected with
and dependent upon the principal remedy.7(Emphasis supplied)
A money claim is only an incidental matter in the main action for the
settlement of the decedent's estate; more so if the claim is
contingent since the claimant cannot even institute a separate action
for a mere contingent claim. Hence, herein petitioner's contingent
money claim, not being an initiatory pleading, does not require
a certification against non-forum shopping.
On the issue of filing fees, the Court ruled in Pascual v. Court of
Appeals,8 that the trial court has jurisdiction to act on a money claim
(attorney's fees) against an estate for services rendered by a lawyer
to the administratrix to assist her in fulfilling her duties to the estate
even without payment of separate docket fees because the filing
fees shall constitute a lien on the judgment pursuant to Section 2,
Rule 141 of the Rules of Court, or the trial court may order the

payment of such filing fees within a reasonable time. 9 After all, the
trial court had already assumed jurisdiction over the action for
settlement of the estate. Clearly, therefore, non-payment of filing
fees for a money claim against the estate is not one of the grounds
for dismissing a money claim against the estate.
With regard to the requirement of a written explanation, Maceda v.
De Guzman Vda. de Macatangay10 is squarely in point. Therein, the
Court held thus:
In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing
upon Section 11 of Rule 13 of the Rules of Court, held that a court
has the discretion to consider a pleading or paper as not filed if said
rule is not complied with.
Personal service and filing are preferred for obvious reasons.
Plainly, such should expedite action or resolution on a pleading,
motion or other paper; and conversely, minimize, if not eliminate,
delays likely to be incurred if service or filing is done by mail,
considering the inefficiency of the postal service. Likewise, personal
service will do away with the practice of some lawyers who, wanting
to appear clever, resort to the following less than ethical practices:
(1) serving or filing pleadings by mail to catch opposing counsel off-
guard, thus leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or (2) upon
receiving notice from the post office that the registered mail
containing the pleading of or other paper from the adverse party may
be claimed, unduly procrastinating before claiming the parcel, or,
worse, not claiming it at all, thereby causing undue delay in the
disposition of such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our
set of adjective rules requiring personal service whenever
practicable, Section 11 of Rule 13 then gives the court
the discretion to consider a pleading or paper as not filed if the other
modes of service or filing were not resorted to and no written
explanation was made as to why personal service was not done in
the first place. The exercise of discretion must, necessarily consider
the practicability of personal service, for Section 11 itself begins with
the clause "whenever practicable".
We thus take this opportunity to clarify that under Section 11, Rule
13 of the 1997 Rules of Civil Procedure, personal service and filing
is the general rule, and resort to other modes of service and filing,
the exception. Henceforth, whenever personal service or filing is
practicable, in the light of the circumstances of time, place and
person, personal service or filing is mandatory. Only when personal
service or filing is not practicable may resort to other modes be had,
which must then be accompanied by a written explanation as to why
personal service or filing was not practicable to begin with. In
adjudging the plausibility of an explanation, a court shall likewise
consider the importance of the subject matter of the case or the
issues involved therein, and the prima facie merit of the pleading
sought to be expunged for violation of Section 11. (Emphasis and
italics supplied)
In Musa v. Amor, this Court, on noting the impracticality of personal
service, exercised its discretion and liberally applied Section 11 of
Rule 13:
"As [Section 11, Rule 13 of the Rules of Court] requires, service and
filing of pleadings must be done personally whenever practicable.
The court notes that in the present case, personal service would not
be practicable. Considering the distance between the Court of
Appeals and Donsol, Sorsogon where the petition was posted,
clearly, service by registered mail [sic] would have entailed
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 38
CODAL PROVISIONS and COMPILATION OF CASES
considerable time, effort and expense. A written explanation why
service was not done personally might have been superfluous. In
any case, as the rule is so worded with the use of "may",
signifying permissiveness, a violation thereof gives the court
discretion whether or not to consider the paper as not filed.
While it is true that procedural rules are necessary to secure an
orderly and speedy administration of justice, rigid application of
Section 11, Rule 13 may be relaxed in this case in the interest of
substantial justice. (Emphasis and italics supplied)1âwphi1
In the case at bar, the address of respondent’s counsel is Lopez,
Quezon, while petitioner Sonia’s counsel’s is Lucena City. Lopez,
Quezon is 83 kilometers away from Lucena City. Such distance
makes personal service impracticable. As in Musa v. Amor, a written
explanation why service was not done personally "might have been
superfluous."
As this Court held in Tan v. Court of Appeals, liberal construction of
a rule of procedure has been allowed where, among other cases,
"the injustice to the adverse party is not commensurate with the
degree of his thoughtlessness in not complying with the procedure
prescribed."11 (Emphasis supplied)
In the present case, petitioner holds office in Salcedo Village, Makati
City, while counsel for respondent and the RTC which rendered the
assailed orders are both in Iligan City. The lower court should have
taken judicial notice of the great distance between said cities and
realized that it is indeed not practicable to serve and file the money
claim personally. Thus, following Medina v. Court of Appeals,12 the
failure of petitioner to submit a written explanation why service has
not been done personally, may be considered as superfluous and
the RTC should have exercised its discretion under Section 11, Rule
13, not to dismiss the money claim of petitioner, in the interest of
substantial justice.
The ruling spirit of the probate law is the speedy settlement of
estates of deceased persons for the benefit of creditors and those
entitled to residue by way of inheritance or legacy after the debts
and expenses of administration have been paid.13 The ultimate
purpose for the rule on money claims was further explained in Union
Bank of the Phil. v. Santibañez,14 thus:
The filing of a money claim against the decedent’s estate in the
probate court is mandatory. As we held in the vintage case of Py
Eng Chong v. Herrera:
x x x This requirement is for the purpose of protecting the
estate of the deceased by informing the executor or
administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one
which should be allowed. The plain and obvious design of the rule is
the speedy settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or heirs. The
law strictly requires the prompt presentation and disposition of
the claims against the decedent's estate in order to settle the
affairs of the estate as soon as possible, pay off its debts and
distribute the residue.15 (Emphasis supplied)
The RTC should have relaxed and liberally construed the procedural
rule on the requirement of a written explanation for non-personal
service, again in the interest of substantial justice.
WHEREFORE, the petition is GRANTED. The Orders of the
Regional Trial Court of Iligan City, Branch 6 dated January 15, 2003
and April 9, 2003, respectively, are REVERSED and SET ASIDE.
 SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 39
CODAL PROVISIONS and COMPILATION OF CASES

The Regional Trial Court of Iligan City, Branch 6, is
hereby DIRECTED to give due course and take appropriate action
on petitioner's money claim in accordance with Rule 82 of the Rules
of Court.
No pronouncement as to costs.
the claim, the court may, in its discretion, allow him fifteen (15) days
to file an answer to the claim in the manner prescribed in the
preceding section.
TRIAL OF CONTESTED CLAIMS

Rule 86, Section 12. Trial of contested claim. — Upon the filing of
SO ORDERED. an answer to a claim, or upon the expiration of the time for such
filing, the clerk of court shall set the claim for trial with notice to both
PROCESSING CLAIMS parties. The court may refer the claim to a commissioner.

FILING OF CLAIMS
JUDGMENT

Rule 86, Section 9. How to file a claim. Contents thereof. Notice to

Rule 86, Section 13. Judgment appealable. — The judgment of the
executor or administrator. — A claim may be filed by delivering the
court approving or disapproving a claim, shall be filed with the record
same with the necessary vouchers to the clerk of court and by
of the administration proceedings with notice to both parties, and is
serving a copy thereof on the executor or administrator. If the claim
appealable as in ordinary cases. A judgment against the executor or
be founded on a bond, bill, note, or any other instrument, the original
administrator shall be that he pay, in due course of administration,
need not be filed, but a copy thereof with all indorsements shall be
the amount ascertained to be due, and it shall not create any lien
attached to the claim and filed therewith. On demand, however, of
upon the property of the estate, or give to the judgment creditor any
the executor or administrator, or by order of the court or judge, the
priority of payment.
original shall be exhibited, unless it be list or destroyed, in which
case the claimant must accompany his claim with affidavit or
affidavits containing a copy or particular description of the instrument COSTS
and stating its loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due, that no
Rule 86, Section 14. Costs. — When the executor or administrator,
payments have been made thereon which are not credited, and that
in his answer, admits and offers to pay part of a claim, and the
there are no offsets to the same, to the knowledge of the affiant. If
claimant refuses to accept the amount offered in satisfaction of his
the claim is not due, or is contingent, when filed, it must also be
claim, if he fails to obtain a more favorable judgment, he cannot
supported by affidavits stating the particulars thereof. When the
recover costs, but must pay to the executor or administrator costs
affidavit is made by a person other than the claimant, he must set
from the time of the offer. Where an action commenced against the
forth therein the reason why it is not made by the claimant. The
deceased for money has been discontinued and the claim embraced
claim once filed shall be attached to the record of the case in which
therein presented as in this rule provided, the prevailing party shall
the letters testamentary or of administration were issued, although
be allowed the costs of his action up to the time of its
the court, in its discretion, and as a matter of convenience, may
discontinuance.
order all the claims to be collected in a separate folder.

ACTIONS THAT SURVIVE

SHEKER v. ESTATE OF ALICE SHEKER

xxx
ANSWER
Rule 86, Section 10. Answer of executor or administrator. Offsets —
Within fifteen (15) days after service of a copy of the claim on the
executor or administrator, he shall file his answer admitting or
denying the claim specifically, and setting forth the admission or
denial. If he has no knowledge sufficient to enable him to admit or
deny specifically, he shall state such want of knowledge. The
executor or administrator in his answer shall allege in offset any
claim which the decedent before death had against the claimant,
and his failure to do so shall bar the claim forever. A copy of the
answer shall be served by the executor or administrator on the
claimant. The court in its discretion may extend the time for filing
such answer.
Rule 87, Section 1. Actions which may and which may not be
brought against executor or administrator. — No action upon a claim
for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but to recover
real or personal property, or an interest therein, from the estate, or to
enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against
him.
Rule 87, Section 2. Executor or administrator may bring or defend
actions which survive. — For the recovery or protection of the
property or rights of the deceased, an executor or administrator may
bring or defend, in the right of deceased, actions for causes which
survive.
WHO MAY FILE?

APPROVAL OF ADMITTED CLAIMS
Rule 86, Section 11. Disposition of admitted claim. — Any claim
admitted entirely by the executor or administrator shall immediately
be submitted by the clerk to the court who may approve the same
without hearing; but the court, in its discretion, before approving the
claim, may order that known heirs, legatees, or devisees be notified
and heard. If upon hearing, an heir, legatees, or devisee opposes
Rule 87, Section 1. Actions which may and which may not be
brought against executor or administrator. — No action upon a claim
for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but to recover
real or personal property, or an interest therein, from the estate, or to
enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against
him.

xxx
Rule 87, Section 3. Heir may not sue until shall assigned — When
an executor or administrator is appointed and assumes the trust, no
action to recover the title or possession of lands or for damages
done to such lands shall be maintained against him by an heir or
devisee until there is an order of the court assigning such lands to
such heir or devisee or until the time allowed for paying debts has
expired.
RIOFERIO v. CA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129008 January 13, 2004
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted
by her husband ZALDY EVANGELISTA, ALBERTO ORFINADA,
and ROWENA O. UNGOS, assisted by her husband BEDA
UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA,
ALFONSO JAMES P. ORFINADA, CHRISTOPHER P. ORFINADA
and ANGELO P. ORFINADA,respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate
pending the appointment of an administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of
Court, seeks to set aside the Decision1 of the Court of Appeals in
CA-G.R. SP No. 42053 dated January 31, 1997, as well as
its Resolution2 dated March 26, 1997, denying petitioners’ motion for
reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located in
Angeles City, Dagupan City and Kalookan City.3 He also left a
widow, respondent Esperanza P. Orfinada, whom he married on
July 11, 1960 and with whom he had seven children who are the
herein respondents, namely: Lourdes P. Orfinada, Alfonso "Clyde"
P. Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P.
Orfinada, Christopher P. Orfinada, Alfonso Mike P. Orfinada
(deceased) and Angelo P. Orfinada.4
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered into
an extra-marital relationship with her during the subsistence of his
marriage to Esperanza sometime in 1965, and co-petitioners
Veronica5, Alberto and Rowena.6
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 40
CODAL PROVISIONS and COMPILATION OF CASES
On November 14, 1995, respondents Alfonso James and Lourdes
Orfinada discovered that on June 29, 1995, petitioner Teodora
Rioferio and her children executed an Extrajudicial Settlement of
Estate of a Deceased Person with Quitclaim involving the properties
of the estate of the decedent located in Dagupan City and that
accordingly, the Registry of Deeds in Dagupan issued Certificates of
Titles Nos. 63983, 63984 and 63985 in favor of petitioners Teodora
Rioferio, Veronica Orfinada-Evangelista, Alberto Orfinada and
Rowena Orfinada-Ungos. Respondents also found out that
petitioners were able to obtain a loan of P700,000.00 from the Rural
Bank of Mangaldan Inc. by executing a Real Estate Mortgage over
the properties subject of the extra-judicial settlement.7
On December 1, 1995, respondent Alfonso "Clyde" P. Orfinada III
filed a Petition for Letters of Administration docketed as S.P. Case
No. 5118 before the Regional Trial Court of Angeles City, praying
that letters of administration encompassing the estate of Alfonso P.
Orfinada, Jr. be issued to him.8
On December 4, 1995, respondents filed a Complaint for the
Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985
and 63984 and Other Related Documents with Damages against
petitioners, the Rural Bank of Mangaldan, Inc. and the Register of
Deeds of Dagupan City before the Regional Trial Court, Branch 42,
Dagupan City.9
On February 5, 1996, petitioners filed their Answer to the aforesaid
complaint interposing the defense that the property subject of the
contested deed of extra-judicial settlement pertained to the
properties originally belonging to the parents of Teodora
Riofero10 and that the titles thereof were delivered to her as an
advance inheritance but the decedent had managed to register them
in his name.11 Petitioners also raised the affirmative defense that
respondents are not the real parties-in-interest but rather the Estate
of Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings.12 On April 29, 1996, petitioners filed
a Motion to Set Affirmative Defenses for Hearing13 on the aforesaid
ground.
The lower court denied the motion in its Order14 dated June 27,
1996, on the ground that respondents, as heirs, are the real parties-
in-interest especially in the absence of an administrator who is yet to
be appointed in S.P. Case No. 5118. Petitioners moved for its
reconsideration15 but the motion was likewise denied.16
This prompted petitioners to file before the Court of Appeals
their Petition for Certiorari under Rule 65 of the Rules of Court
docketed as CA G.R. S.P. No. 42053.17 Petitioners averred that the
RTC committed grave abuse of discretion in issuing the assailed
order which denied the dismissal of the case on the ground that the
proper party to file the complaint for the annulment of the
extrajudicial settlement of the estate of the deceased is the estate of
the decedent and not the respondents.18
The Court of Appeals rendered the assailed Decision19 dated
January 31, 1997, stating that it discerned no grave abuse of
discretion amounting to lack or excess of jurisdiction by the public
respondent judge when he denied petitioners’ motion to set
affirmative defenses for hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.20 Hence, the petition before this Court.

The issue presented by the petitioners before this Court is whether
the heirs have legal standing to prosecute the rights belonging to the
deceased subsequent to the commencement of the administration
proceedings.21
Petitioners vehemently fault the lower court for denying their motion
to set the case for preliminary hearing on their affirmative defense
that the proper party to bring the action is the estate of the decedent
and not the respondents. It must be stressed that the holding of a
preliminary hearing on an affirmative defense lies in the discretion of
the court. This is clear from the Rules of Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the
grounds for dismissal provided for in this rule, except improper
venue, may be pleaded as an affirmative defense, and a preliminary
hearing may be had thereon as if a motion to dismiss had been
filed.22 (Emphasis supplied.)
Certainly, the incorporation of the word "may" in the provision is
clearly indicative of the optional character of the preliminary hearing.
The word denotes discretion and cannot be construed as having a
mandatory effect.23Subsequently, the electivity of the proceeding
was firmed up beyond cavil by the 1997 Rules of Civil Procedure
with the inclusion of the phrase "in the discretion of the Court", apart
from the retention of the word "may" in Section 6,24in Rule 16
thereof.
Just as no blame of abuse of discretion can be laid on the lower
court’s doorstep for not hearing petitioners’ affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without
doubt have legal personality to bring suit in behalf of the estate of
the decedent in accordance with the provision of Article 777 of the
New Civil Code "that (t)he rights to succession are transmitted from
the moment of the death of the decedent." The provision in turn is
the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person are
transmitted through his death to another or others by his will or by
operation of law.25
Even if administration proceedings have already been commenced,
the heirs may still bring the suit if an administrator has not yet been
appointed. This is the proper modality despite the total lack of
advertence to the heirs in the rules on party representation, namely
Section 3, Rule 326 and Section 2, Rule 8727 of the Rules of Court. In
fact, in the case of Gochan v. Young,28 this Court recognized the
legal standing of the heirs to represent the rights and properties of
the decedent under administration pending the appointment of an
administrator. Thus:
The above-quoted rules,29 while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which
an administrator has already been appointed. But no rule
categorically addresses the situation in which special
proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the appointment
of an administrator; then wait further to see if the administrator
appointed would care enough to file a suit to protect the rights and
the interests of the deceased; and in the meantime do nothing while
the rights and the properties of the decedent are violated or
dissipated.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 41
CODAL PROVISIONS and COMPILATION OF CASES
Even if there is an appointed administrator, jurisprudence recognizes
two exceptions, viz: (1) if the executor or administrator is unwilling or
refuses to bring suit;30 and (2) when the administrator is alleged to
have participated in the act complained of31 and he is made a party
defendant.32 Evidently, the necessity for the heirs to seek judicial
relief to recover property of the estate is as compelling when there is
no appointed administrator, if not more, as where there is an
appointed administrator but he is either disinclined to bring suit or is
one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to
sue for the recovery of property of the estate during the pendency of
administration proceedings has three exceptions, the third being
when there is no appointed administrator such as in this case.
As the appellate court did not commit an error of law in upholding
the order of the lower court, recourse to this Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed
decision and resolution of the Court of Appeals are hereby
AFFIRMED. No costs.
SO ORDERED.
ACTIONS ON BEHALF OF ESTATE
Rule 87, Section 5. Mortgage due estate may be foreclosed. — A
mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right or a mortgage, may be
foreclosed by the executor or administrator.
xxx
Rule 87, Section 8. Embezzlement before letters issued — If a
person, before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or
alienates any of the money, goods, chattels, or effects of such
deceased, such person shall be liable to an action in favor of the
executor or administrator of the estate for double the value of the
property sold, embezzled, or alienated, to be recovered for the
benefit of such estate.
ACTIONS ON BEHALF OF CREDITORS
Rule 87, Section 9. Property fraudulently conveyed by deceased
may be recovered. When executor or administrator must bring
action. — When there is a deficiency of assets in the hands of an
executor or administrator for the payment of debts and expenses of
administration, and the deceased in his lifetime had conveyed real or
personal property, or a right or interest therein, or an debt or credit,
with intent to defraud his creditors or to avoid any right, debt, or duty;
or had so conveyed such property, right, interest, debt or credit that
by law the conveyance would be void as against his creditors, and
the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final judgment an
action for the recovery of such property, right, interest, debt, or credit
for the benefit of the creditors; but he shall not be bound to
commence the action unless on application of the creditors of the
deceased, not unless the creditors making the application pay such
part of the costs and expenses, or give security therefor to the
executor or administrator, as the court deems equitable.

Rule 87, Section 10. When creditor may bring action. Lien for costs.
— When there is such a deficiency of assets, and the deceased in
his lifetime had made or attempted such a conveyance, as is stated
in the last preceding section, and the executor or administrator has
not commenced the action therein provided for, any creditor of the
estate may, with the permission of the court, commence and
prosecute to final judgment, in the name of the executor or
administrator, a like action for the recovery of the subject of the
conveyance or attempted conveyance for the benefit of the creditors.
But the action shall not be commenced until the creditor has filed in
a court a bond executed to the executor or administrator, in an
amount approved by the judge, conditioned to indemnify the
executor or administrator against the costs and expenses incurred
by reason of such action. Such creditor shall have a lien upon any
judgment recovered by him in the action for such costs and other
expenses incurred therein as the court deems equitable. Where the
conveyance or attempted conveyance had been made by the
deceased in his lifetime in favor of the executor or administrator, the
action which a credit may bring shall be in the name of all the
creditors, and permission of the court and filing of bond as above
prescribed, are not necessary.
PROCEEDINGS UNDER RULE 87, SEC. 6
Rule 87, Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor or
administrator, heir, legatee, creditor or other individual interested in
the estate of the deceased, 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 or discloses the right, title,
interest, or claim of the deceased, the court may cite such suspected
person to appear before it any may examine him on oath on the
matter of such complaint; and if the person so cited refuses to
appear, or to answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt, and may
commit him to prison until he submits to the order of the court. The
interrogatories put any such person, and his answers thereto, shall
be in writing and shall be filed in the clerk's office.
CHUA v. ABSOLUTE MANAGEMENT CORPORATION
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 144881 October 16, 2003
BETTY T. CHUA, JENNIFER T. CHUA-LOCSIN, BENISON T.
CHUA, and BALDWIN T. CHUA, petitioners
vs.
ABSOLUTE MANAGEMENT CORPORATION and COURT OF
APPEALS, respondents<.
DECISION
CARPIO, J.:
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 42
CODAL PROVISIONS and COMPILATION OF CASES
The Case
This is a petition for review on certiorari1 to annul the Decision2 dated
9 May 2000 of the Court of Appeals in CA-G.R. SP No. 57421, as
well as the Resolution dated 5 September 2000 denying the motion
for reconsideration. The Court of Appeals set aside the Order3 dated
7 February 2000 issued by Branch 112 of the Regional Trial Court of
Pasay City which denied the petitioners’ "Motion for the Examination
of the Administratrix and Others" ("Motion").
Antecedent Facts
The facts are not in dispute. As found by the Court of Appeals, the
essential antecedents are as follows:
Sometime in 1999, upon a petition for letters of administration filed
by [herein petitioners] Jennifer T. Chua-Locsin, Benison T. Chua,
and Baldwin T. Chua with the Regional Trial Court, Branch 112,
Pasay City, presided by [Judge Manuel P. Dumatol], xxx Betty T.
Chua was appointed as administratrix of the intestate estate of the
deceased Jose L. Chua. Thereafter, she submitted to the trial court
an inventory of all the real and personal properties of the
deceased.1awphi1.nét
One of the creditors of the deceased, [herein respondent] Absolute
Management Corporation, filed a claim on [sic] the estate in the
amount of ₱63,699,437.74. As administratrix, Betty T. Chua
tentatively accepted said amount as correct, with a statement that it
shall be reduced or adjusted as additional evidences [sic] may
warrant.
In the interim, Absolute Management Corporation noticed that the
deceased’s shares of stocks with Ayala Sales Corporation and Ayala
Construction Supply, Inc. were not included in the inventory of
assets. As a consequence, it filed a motion to require Betty T. Chua
to explain why she did not report these shares of stocks in the
inventory. Through a reply, Betty T. Chua alleged that these shares
had already been assigned and transferred to other parties prior to
the death of her husband, Jose L. Chua. She attached to her reply
the deeds of assignment which allegedly constituted proofs of
transfer. Judge Dumatol accepted the explanation as meritorious.
Absolute Management Corporation, suspecting that the documents
attached to Betty T. Chua’s reply were spurious and simulated, filed
a motion for the examination of the supposed transferees. xxx It
premised its motion on Section 6, Rule 87, Revised Rules of Court,
infra, which states that when a person is suspected of having
concealed, embezzled, or conveyed away any of the properties of
the deceased, a creditor may file a complaint with the trial court and
the trial court may cite the suspected person to appear before it and
be examined under oath on the matter of such complaint. Private
respondents opposed the motion on the ground that this provision
bears no application to the case. On February 7, 2000, Judge
Dumatol issued the assailed order.4
The Ruling of the Trial Court
The trial court’s order denying Absolute Management Corporation’s
("Absolute") Motion reads:
This resolves the undated Motion for the Examination of the
Administratrix and Others, filed on January 11, 2000 by claimant
Absolute Management Corporation, to which petitioners, through
counsel filed their opposition, and claimant Absolute Management
Corporation in turn filed its reply.

Finding no merit in the motion filed by claimant Absolute
Management Corporation, as it in effect seeks to engage in a fishing
expedition for evidence to be used against the administratrix and
others whom it seeks to examine, it being the consensus of the
Court that the Rules of Procedure does [sic] not allow the fishing of
evidence to use [sic] against the adverse party, claimant Absolute
Management Corporation’s motion is hereby DENIED.
SO ORDERED.5
Aggrieved, Absolute filed a petition for certiorari and mandamus with
the Court of Appeals.
The Ruling of the Court of Appeals
In its petition for certiorari and mandamus before the Court of
Appeals, Absolute claimed that the trial court committed grave
abuse of discretion in denying its Motion and in failing to act on its
claim. Absolute alleged that the trial court deprived it of the right to
show that the documents presented by petitioners were fictitious to
the prejudice of Absolute.
During the hearing6 conducted on 9 August 2000 before the
members of the Special Sixth Division of the Court of Appeals,
counsel for Absolute presented the following evidence to support its
assertion that the transfers of the shares were spurious:
1. Exhibit "A"7 - Certification from the Office of the Clerk of Court of
the Regional Trial Court of Pasay City that Atty. Hilarion A.D.
Maagad (the notary public who notarized the questioned Secretary’s
Certificate8 and Deeds of Assignment of Shares of Stock9 ) is not
listed in the Roll of Notaries Public for the City of Pasay particularly
for the period of 1993-1994, 1994-1995, 1998-1999 and 1999-2000.
2. Exhibit "B"10 – Certification from the Clerk of Court of the Regional
Trial Court of Makati City that the questioned Secretary’s
Certificate11 was not included in the Notarial Report of Atty. Lope M.
Velasco for the years 1998-1999.
3. Exhibits "B-1," "B-2," and "B-3"12 – Certification from the Clerk of
Court of the Regional Trial Court of Makati City that the questioned
Deeds of Assignment of Shares of Stock13 were not included in the
Notarial Report of Atty. Lope M. Velasco for the years 1998-1999.
In setting aside the trial court’s order, the Court of Appeals pointed
out that the presentation of the deeds of assignment executed by the
decedent in petitioners’ favor does not automatically negate the
existence of concealment. The appellate court stated that it is a
common occurrence in estate proceedings for heirs to execute
simulated deeds of transfer which conceal and place properties of
the decedent beyond the reach of creditors.
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the petition is GRANTED. The order dated February
7, 2000 of respondent Judge Manuel P. Dumatol is hereby SET
ASIDE. He is hereby ORDERED to give due course to petitioner’s
"Motion for the Examination of the Administratrix and Others" and
thereafter, to dispose of the claim accordingly.
SO ORDERED.14
Hence, this petition.
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 43
CODAL PROVISIONS and COMPILATION OF CASES
Issue
Petitioners would like this Court to rule whether Section 6, Rule 87 of
the Rules of Court, which is the principal basis of Absolute’s Motion,
is mandatory or merely directory on the trial court. This perspective
misses the point. The issue in this case is whether the Court of
Appeals correctly ordered the trial court to give due course to the
Motion for Examination.
Petitioners also point out that the Court of Appeals should have
dismissed Absolute’s petition because of these procedural
infirmities:
1. Counsel for Absolute, not the proper officers of Absolute, filed the
Certification against Forum Shopping;
2. Absolute attached only a duplicate original copy of the challenged
order of the trial court to the petition submitted to the Court of
Appeals; and
3. No proper proof of service accompanied the petition submitted to
the Court of Appeals.15
The Ruling of the Court
The petition has no merit.
Whether the Court of Appeals correctly ordered the Trial Court to
give due course to Absolute’s Motion for Examination
Section 6, Rule 87 of the Rules of Court provides:
SEC. 6. Proceedings when property concealed, embezzled, or
fraudulently conveyed. — If an executor or administrator, heir,
legatee, creditor, or other individual interested in the estate of the
deceased, 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, the court may cite such suspected
person to appear before it and may examine him on oath on the
matter of such complaint; and if the person so cited refuses to
appear, or to answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt, and may
commit him to prison until he submits to the order of the court. The
interrogatories put to any such person, and his answers thereto,
shall be in writing and shall be filed in the clerk’s office.
Section 6 of Rule 87 seeks to secure evidence from persons
suspected of having possession or knowledge of the properties left
by a deceased person, or of having concealed, embezzled or
conveyed any of the properties of the deceased.16
The court which acquires jurisdiction over the properties of a
deceased person through the filing of the corresponding
proceedings has supervision and control over these properties. The
trial court has the inherent duty to see to it that the inventory of the
administrator lists all the properties, rights and credits which the law
requires the administrator to include in his inventory. In compliance
with this duty, the court also has the inherent power to determine
what properties, rights and credits of the deceased the administrator
should include or exclude in the inventory. An heir or person

interested in the properties of a deceased may call the court’s
attention that certain properties, rights or credits are left out from the
inventory. In such a case, it is likewise the court’s duty to hear the
observations of such party. The court has the power to determine if
such observations deserve attention and if such properties belong
prima facie to the estate.17
However, in such proceedings the trial court has no authority to
decide whether the properties, real or personal, belong to the estate
or to the persons examined. If after such examination there is good
reason to believe that the person examined is keeping properties
belonging to the estate, then the administrator should file an ordinary
action in court to recover the same.18 Inclusion of certain shares of
stock by the administrator in the inventory does not automatically
deprive the assignees of their shares. They have a right to be heard
on the question of ownership, when that property is properly
presented to the court.19
In the present case, some of the transferees of the shares of stock
do not appear to be heirs of the decedent. Neither do they appear to
be parties to the intestate proceedings.20 Third persons to whom the
decedent’s assets had been conveyed may be cited to appear in
court and examined under oath as to how they came into
possession of the decedent’s assets. In case of fraudulent
conveyances, a separate action is necessary to recover these
assets.21
Taken in this light, there is no reason why the trial court should
disallow the examination of the alleged transferees of the shares of
stocks. This is only for purposes of eliciting information or securing
evidence from persons suspected of concealing or conveying some
of the decedent’s properties to the prejudice of creditors. Petitioners’
admission that these persons are the decedent’s assignees does not
automatically negate concealment of the decedent’s assets on their
part. The assignment might be simulated so as to place the shares
beyond the reach of creditors. In case the shares are eventually
included in the estate, this inventory is merely provisional and is not
determinative of the issue of ownership. A separate action is
necessary for determination of ownership and recovery of
possession. 22 1a\^/phi1.net
Whether the Petition submitted to the Court of Appeals suffered from
procedural infirmities which merit its dismissal
The petition filed before the Court of Appeals contained a certificate
of non-forum shopping executed by counsel and not by the
authorized officer of Absolute. However, the subsequent filing of an
affidavit of non-forum shopping signed by the corporate director
cured this defect. In Maricalum Mining Corp. v. National Labor
Relations Commission,23 the Court held that a slight delay in the
filing of an affidavit of non-forum shopping should not defeat the
action. A liberal interpretation of the rules is more in keeping with the
objective to "secure a just, speedy and inexpensive disposition of
every action and proceeding." As held in Loyola v. Court of
Appeals,24 substantial compliance is sufficient. While submission of
the certificate of non-forum shopping is mandatory, nonetheless we
must not interpret the requirement too literally to defeat the objective
of preventing the undesirable practice of forum shopping. 25 Technical
rules of procedure should be used to promote, not frustrate, justice.
While the swift unclogging of court dockets is a laudable objective,
the granting of substantial justice is an even more urgent ideal.26
Petitioners claim that the attachment of a mere duplicate original
copy of the assailed order violates the express mandate of Section
1, Rule 65, of the 1997 Rules of Civil Procedure. This rule states that
"the petition shall be accompanied by a certified true copy of the
SPECIAL PROCEEDINGS (Atty. Geraldine Quimosing-Tiu) 44
CODAL PROVISIONS and COMPILATION OF CASES
judgment, order, or resolution subject thereof." However, under
Section 3, Rule 46 of the 1997 Rules of Civil Procedure, as
amended by Circular No. 39-98, either a certified true copy or a
duplicate original copy may be attached to the petition.
The affidavit of service executed by petitioners’ counsel stating that
he served a copy of the petition by registered mail to respondents
with the corresponding registry receipts constitutes sufficient proof of
service.27 This complies with Section 13, Rule 13 of the 1997 Rules
of Civil Procedure.
Lastly, petitioners quote Arcega and Miranda v. Pecson and
Arcega28 to question the propriety of filing a petition for certiorari
before the Court of Appeals:
Without deciding whether the proceeding thus conducted complies
with the provision of Section 6 of Rule 88 [Section 6, Rule 87 under
the 1997 Rules of Civil Procedure], which says that "the court may
cite such suspected person to appear before it and may examine
him on oath on the matter of such complaint," and without deciding
whether the duty of the judge to make the examination is or not
mandatory, we are satisfied that certiorari is not an appropriate
remedy under the aforecited rule. (Emphasis supplied)
The facts in Arcega are not on all fours with the facts in the instant
case. In Arcega, the judge granted the examination but only with
respect to three of the several lots involved. In the present case,
there was an absolute refusal by the trial court to conduct an
examination on the ground that it would constitute a "fishing
expedition" of evidence that could be used against the administratrix.
In Arcega, the trial court issued an order in favor of the person
suspected of having concealed properties of the estate and against
the special administratrix and the judicial receiver. The special
administratrix had the remedy of filing another case to recover such
properties in the name of thee state.29
In the present case, Absolute as a creditor of the decedent filed the
petition after the trial court denied its Motion for examination.
Absolute questioned the ruling in favor of the administratrix and heirs
of the decedent. Although as a creditor, Absolute does have the
remedy of filing another case to recover such properties, 30 its Motion
for examination was intended merely to investigate and take
testimony in preparation for an independent action.31 Aside from the
administratrix and the heirs of the decedent, Absolute also sought to
examine the supposed assignees of the decedent’s shares, who are
third persons with respect to the probate proceedings. The Motion
was a preparatory move sanctioned by the Rules of Court. The
denial of Absolute’s Motion was an interlocutory order not subject to
appeal. The order of denial may, however, be challenged before a
superior court through a petition for certiorari under Rule 65.
WHEREFORE, we DENY the petition for lack of merit. The Decision
of the Court of Appeals in CA-G.R. SP No. 57421 dated 9 May 2000
as well as the Resolution dated 5 September 2000 denying the
motion for reconsideration is AFFIRMED.
SO ORDERED.