1. G.R. No.

L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge,

Court of First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.
Jd lies in qc, not in laguna
G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal,
Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.

Same; Same; Court’s discretion to choose the special administration should be bused on reason,
equity, and justice.—Nevertheless, the discretion to appoint a special administrator does not tie in the
probate court. That, however, is no authority for the judge to become partial, or Lo make his personal
likes arid dislikes prevail over, or his passions, to rule, his judgment. Exercise of that discretion must be
based on reason, equity, justice and legal principle.

Same; Same; Special administrator; The rules applicable in the choice of a regular administrator
should be applied in the appointment of special administrator for a decedent’s estate.—There is no
reason why the same fundamental and legal principles governing the choice of a regular administrator
should not be taken into account in the appointment of a special administrator. Nothing is wrong for
the judge to consider the order of preference in the appointment of a regular administrator in
appointing a special administrator. After all, the consideration that overrides all others in this respect
is the beneficial interest of the appointee in the estate of the decedent. Under the law, the widow
would have the right of succession over a portion CM the exclusive property of the decedent, besides
her share in the conjugal partnership. For such reason, she would have as much, if not more, interest
in administering the entire estate correctly than any other next of kin. The good or bad administration
of a property may affect rather the fruits than the naked ownership of a property.

These two interrelated cases bring to Us the question of what the word "resides" in
Section 1, Rule 73 of the Revised Rules Of Court, referring to the situs of the
settlement of the estate of deceased persons, means. Additionally, the rule in the
appointment of a special administrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at
Calamba, presided over by Judge Severo A. Malvar, a petition for letters of
administration, docketed as Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26,
1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the
City of Manila, leaving real estate and personal properties in Calamba, Laguna, and
in other places, within the jurisdiction of the Honorable Court." At the same time,
she moved
ex parte for her appointment as special administratrix over the estate. On even date,
May 2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973,

contending that the order appointing Virginia G. Fule as special administratrix was
issued without jurisdiction, since no notice of the petition for letters of
administration has been served upon all persons interested in the estate; there has
been no delay or cause for delay in the proceedings for the appointment of a
regular administrator as the surviving spouse of Amado G. Garcia, she should be
preferred in the appointment of a special administratrix; and, Virginia G. Fule is a
debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that
she be appointed special administratrix of the estate, in lieu of Virginia G. Fule, and
as regular administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court,
Preciosa B. Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as
special administratrix alleging, besides the jurisdictional ground raised in the
motion for reconsideration of May 8, 1973 that her appointment was obtained
through erroneous, misleading and/or incomplete misrepresentations; that Virginia
G. Fule has adverse interest against the estate; and that she has shown herself
unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration
filed by Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was
published on May 17, 24, and 31, 1973, in the Bayanihan, a weekly publication of
general circulation in Southern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the

Appointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental
petition modified the original petition in four aspects: (1) the allegation that during
the lifetime of the deceased Amado G. Garcia, he was elected as Constitutional
Delegate for the First District of Laguna and his last place of residence was at
Calamba, Laguna; (2) the deletion of the names of Preciosa B. Garcia and Agustina
Garcia as legal heirs of Amado G. Garcia; (3) the allegation that Carolina Carpio,
who was simply listed as heir in the original petition, is the surviving spouse of
Amado G. Garcia and that she has expressly renounced her preferential right to the
administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule
be appointed as the regular administratrix. The admission of this supplemental
petition was opposed by Preciosa B. Garcia for the reason, among others, that it
attempts to confer jurisdiction on the Court of First Instance of Laguna, of which
the court was not possessed at the beginning because the original petition was
deficient.
On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and
supplemental petitions for letters of administration, raising the issues of
jurisdiction, venue, lack of interest of Virginia G. Fule in the estate of Amado G.
Garcia, and disqualification of Virginia G Fule as special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for
authority to take possession of properties of the decedent allegedly in the hands of
third persons as well as to secure cash advances from the Calamba Sugar Planters
Cooperative Marketing Association, Inc. Preciosa B. Garcia opposed the motion,
calling attention to the limitation made by Judge Malvar on the power of the special
administratrix, viz., "to making an inventory of the personal and real properties
making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by
Preciosa B. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia
to reconsider the order of May 2, 1973, appointing Virginia G. Fule as special
administratrix, and admitting the supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1)
jurisdiction over the petition or over the parties in interest has not been acquired by
the court; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in
interest as she is not entitled to inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute

Virginia G. Fule as special administratrix, reasoning that the said Virginia G. Fule
admitted before before the court that she is a full-blooded sister of Pablo G. Alcalde,
an illegitimate son of Andrea Alcalde, with whom the deceased Amado G. Garcia
has no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin
the special administratrix from taking possession of properties in the hands of third
persons which have not been determined as belonging to Amado G. Garcia;
another, to remove the special administratrix for acting outside her authority and
against the interest of the estate; and still another, filed in behalf of the minor
Agustina B. Garcia, to dismiss the petition for want of cause of action, jurisdiction,
and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of
Virgina G. Fule and the motion to dismiss filed by Preciosa B. Garcia. Resolving the
motion to dismiss, Judge Malvar ruled that the powers of the special administratrix
are those provided for in Section 2, Rule 80 of the Rules of Court, subject only to
1

the previous qualification made by the court that the administration of the
properties subject of the marketing agreement with the Canlubang Sugar Planters
Cooperative Marketing Association should remain with the latter; and that the
special administratrix had already been authorized in a previous order of August 20,
1973 to take custody and possession of all papers and certificates of title and
personal effects of the decedent with the Canlubang Sugar Planters Cooperative
Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar Planters
Cooperative Marketing Association, Inc., was ordered to deliver to Preciosa B.
Garcia all certificates of title in her name without any qualifying words like "married
to Amado Garcia" does not appear. Regarding the motion to dismiss, Judge Malvar
ruled that the issue of jurisdiction had already been resolved in the order of July 2,
1973, denying Preciosa B. Garcia's motion to reconsider the appointment of Virginia
G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in the place of residence
of the decedent at the time of his death was cured. Judge Malvar further held that
Preciosa B. Garcia had submitted to the jurisdiction of the court and had waived
her objections thereto by praying to be appointed as special and regular
administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify
or reconsider the foregoing order of Judge Malvar, in view of previous court order
limiting the authority of the special administratrix to the making of an inventory.
Preciosa B. Garcia also asked for the resolution of her motion to dismiss the
petitions for lack of cause of action, and also that filed in behalf of Agustina B.
Garcia. Resolution of her motions to substitute and remove the special
administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying
Preciosa B. Garcia's motions to substitute and remove the special administratrix,
and the second, holding that the power allowed the special administratrix enables
her to conduct and submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing

orders of November 28, 1973 and December 19, 1973, insofar as they sustained or
failed to rule on the issues raised by her: (a) legal standing (cause of action) of
Virginia G. Fule; (b) venue; (c) jurisdiction; (d) appointment, qualification and
removal of special administratrix; and (e) delivery to the special administratrix of
checks and papers and effects in the office of the Calamba Sugar Planters
Cooperative Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa
B. Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge
Malvar issued the other three questioned orders: one, directing Ramon Mercado, of
the Calamba Sugar Planters Cooperative Marketing Association, Inc., to furnish
Virginia G. Fule, as special administratrix, copy of the statement of accounts and
final liquidation of sugar pool, as well as to deliver to her the corresponding
amount due the estate; another, directing Preciosa B. Garcia to deliver to Virginia G.
Fule two motor vehicles presumably belonging to the estate; and another, directing
Ramon Mercado to deliver to the court all certificates of title in his possession in
the name of Preciosa B. Garcia, whether qualified with the word "single" or
"married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before
Judge Malvar, Virginia G. Fule presented the death certificate of Amado G. Garcia
2

showing that his residence at the time of his death was Quezon City. On her part,
Preciosa B. Garcia presented the residence certificate of the decedent for 1973
showing that three months before his death his residence was in Quezon City.
Virginia G. Fule also testified that Amado G. Garcia was residing in Calamba,
Laguna at the time of his death, and that he was a delegate to the 1971
Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special
action for certiorari and/or prohibition and preliminary injunction before the Court
of Appeals, docketed as CA-G.R. No. 03221-SP. primarily to annul the proceedings
before Judge Malvar in Sp. Proc. No. 27-C of the Court of First Instance of Laguna,
or, in the alternative, to vacate the questioned four orders of that court, viz., one
dated March 27, 1974, denying their motion for reconsideration of the order denying
their motion to dismiss the criminal and supplemental petitions on the issue,
among others, of jurisdiction, and the three others, all dated July 19, 1974, directing
the delivery of certain properties to the special administratrix, Virginia G. Fule, and
to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the
proceedings before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First
Instance of Calamba, Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule
forthwith elevated the matter to Us on appeal by certiorari. The case was docketed
as G.R. No. L-40502.

However, even before Virginia G. Fule could receive the decision of the Court of
Appeals, Preciosa B. Garcia had already filed on February 1, 1975 a petition for
letters of administration before the Court of First Instance of Rizal, Quezon City
Branch, docketed as Sp. Proc. No. Q-19738, over the same intestate estate of Amado
G. Garcia. On February 10, 1975, Preciosa B. Garcia urgently moved for her
appointment as special administratrix of the estate. Judge Vicente G. Ericta granted
the motion and appointed Preciosa B. Garcia as special administratrix upon a bond
of P30,000.00. Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of
the pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First
Instance of Laguna, and the annulment of the proceedings therein by the Court of
Appeals on January 30, 1975. She manifested, however, her willingness to withdraw
Sp. Proc. Q-19738 should the decision of the Court of Appeals annulling the
proceedings before the Court of First Instance of Laguna in Sp. Proc. No. 27-C have
not yet become final, it being the subject of a motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before
his court until Preciosa B. Garcia inform the court of the final outcome of the case
pending before the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed
on December 11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question

Venue and Jurisdiction" reiterating the grounds stated in the previous special
appearance of March 3, 1975, and calling attention that the decision of the Court of
Appeals and its resolution denying the motion for reconsideration had been
appealed to this Court; that the parties had already filed their respective briefs; and
that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta,
issued an order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay
Estate Obligations" in that the payments were for the benefit of the estate and that
there hangs a cloud of doubt on the validity of the proceedings in Sp. Proc. No. 27-C
of the Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for
certiorari with temporary restraining order, to annul the proceedings in Sp. Proc.
No. Q-19738 and to restrain Judge Ernani Cruz Paño from further acting in the case.
A restraining order was issued on February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No.
L-42670 for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "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 proceeding, except in an appeal from that court,
in the original case, or when the want of jurisdiction appears on the record." With
particular regard to letters of administration, Section 2, Rule 79 of the Revised Rules
of Court demands that the petition therefor should affirmatively show the existence
of jurisdiction to make the appointment sought, and should allege all the necessary
facts, such as death, the name and last residence of the decedent, the existence,
and situs if need be, of assets, intestacy, where this is relied upon, and the right of
the person who seeks administration, as next of kin, creditor, or otherwise, to be
appointed. The fact of death of the intestate and his last residence within the
country are foundation facts upon which all subsequent proceedings in the
administration of the estate rest, and that if the intestate was not an inhabitant of
the state at the time of his death, and left no assets in the state, no jurisdiction is
conferred on the court to grant letters of administration. 3

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
estate," 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
4

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 and 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.5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction
over all probate cases independently of the place of residence of the deceased. Because
of the existence of numerous Courts of First Instance in the country, the Rules of Court,
however, purposedly fixes the venue or the place where each case shall be brought. A
fortiori, the place of residence of the deceased in settlement of estates, probate of will,
and issuance of letters of administration does not constitute an element of jurisdiction over
the subject matter. It is merely constitutive of venue. And it is upon this reason that the
Revised Rules of Court properly considers the province where the estate of a deceased
person shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer
to the actual residence or domicile of the decedent at the time of his death? We lay down
the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term "resides," like, the terms
"residing" and "residence," is elastic and should be interpreted in the light of the object or
purpose of the statute or rule in which it is employed. In the application of venue statutes
7

and rules — Section 1, Rule 73 of the Revised Rules of Court is of such nature —
residence rather than domicile is the significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning residence and not domicile in the technical
sense. Some cases make a distinction between the terms "residence" and "domicile" but
as generally used in statutes fixing venue, the terms are synonymous, and convey the
same meaning as the term "inhabitant." In other words, "resides" should be viewed or
8

understood in its popular sense, meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term means merely residence, that is,
personal residence, not legal residence or domicile. Residence simply requires bodily
9

presence as an inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile. No particular length of time of
10

residence is required though; however, the residence must be more than temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the
residence of the deceased Amado G. Garcia at the time of his death. In her original
petition for letters of administration before the Court of First Instance of Calamba, Laguna,
Virginia G. Fule measely stated "(t)hat on April 26,1973, Amado G. Garcia, a property
owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and
personal properties in Calamba, Laguna, and in other places within the jurisdiction of this
Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy the
jurisdictional requirement and improper laying of venue. For her, the quoted statement
avers no domicile or residence of the deceased Amado G. Garcia. To say that as
"property owner of Calamba, Laguna," he also resides in Calamba, Laguna, is, according
to her, non sequitur. On the contrary, Preciosa B. Garcia claims that, as appearing in his
death certificate presented by Virginia G. Fule herself before the Calamba court and in
other papers, the last residence of Amado G. Garcia was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Parenthetically, in her amended petition, Virginia G. Fule
categorically alleged that Amado G. Garcia's "last place of residence was at Calamba,
Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G. Garcia
was at 11 Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna.
A death certificate is admissible to prove the residence of the decedent at the time of his
death. As it is, the death certificate of Amado G. Garcia, which was presented in
12

evidence by Virginia G. Fule herself and also by Preciosa B. Garcia, shows that his last
place of residence was at 11 Carmel Avenue, Carmel Subdivision, Quezon City. Aside
from this, the deceased's residence certificate for 1973 obtained three months before his
death; the Marketing Agreement and Power of Attorney dated November 12, 1971 turning
over the administration of his two parcels of sugar land to the Calamba Sugar Planters
Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973,
transferring part of his interest in certain parcels of land in Calamba, Laguna to Agustina B.
Garcia; and certificates of titles covering parcels of land in Calamba, Laguna, show in bold
documents that Amado G. Garcia's last place of residence was at Quezon City. Withal,
the conclusion becomes imperative that the venue for Virginia C. Fule's petition for letters
of administration was improperly laid in the Court of First Instance of Calamba, Laguna.
Nevertheless, the long-settled rule is that objection to improper venue is subject to waiver.
Section 4, Rule 4 of the Revised Rules of Court states: "When improper venue is not
objected to in a motion to dismiss, it is deemed waived." In the case before Us the Court of
Appeals had reason to hold that in asking to substitute Virginia G. Fule as special
administratrix, Preciosa B. Garcia did not necessarily waive her objection to the
jurisdiction or venue assumed by the Court of First Instance of Calamba, Laguna, but
availed of a mere practical resort to alternative remedy to assert her rights as surviving
spouse, while insisting on the enforcement of the Rule fixing the proper venue of the
proceedings at the last residence of the decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special

administratrix is another issue of perplexity. Preciosa B. Garcia claims preference to the
appointment as surviving spouse. Section 1 of Rule 80 provides that "(w)hen there is delay
in granting letters testamentary or of administration by any cause including an appeal from
the allowance or disallowance of a will, the court may appoint a special administrator to
take possession and charge of the estate of the deceased until the questions causing the
delay are decided and executors or administrators appointed. Formerly, the appointment
13

of a special administrator was only proper when the allowance or disallowance of a will is
under appeal. The new Rules, however, broadened the basis for appointment and such
appointment is now allowed when there is delay in granting letters testamentary or
administration by any cause e.g., parties cannot agree among themselves. Nevertheless,
14

the discretion to appoint a special administrator or not lies in the probate court. That,
15

however, is no authority for the judge to become partial, or to make his personal likes and
dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must
be based on reason, equity, justice and legal principle. There is no reason why the same
fundamental and legal principles governing the choice of a regular administrator should
not be taken into account in the appointment of a special administrator. Nothing is wrong
16

for the judge to consider the order of preference in the appointment of a regular
administrator in appointing a special administrator. After all, the consideration that
overrides all others in this respect is the beneficial interest of the appointee in the estate of
the decedent. Under the law, the widow would have the right of succession over a
17

portion of the exclusive property of the decedent, besides her share in the conjugal
partnership. For such reason, she would have as such, if not more, interest in
administering the entire estate correctly than any other next of kin. The good or bad
administration of a property may affect rather the fruits than the naked ownership of a
property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the
late Amado G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G.
Fule has no relation whatsoever with Amado G. Garcia, or that, she is a mere illegitimate
sister of the latter, incapable of any successional rights. On this point, We rule that
19

Preciosa B. Garcia is prima facie entitled to the appointment of special administratrix. It

needs be emphasized that in the issuance of such appointment, which is but temporary
and subsists only until a regular administrator is appointed, the appointing court does not
20

determine who are entitled to share in the estate of the decedent but who is entitled to the
administration. The issue of heirship is one to be determined in the decree of distribution,
and the findings of the court on the relationship of the parties in the administration as to be
the basis of distribution. The preference of Preciosa B. Garcia is with sufficient reason. In
21

a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in
favor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B.
Garcia. In his certificate of candidacy for the office of Delegate to the Constitutional
22

Convention for the First District of Laguna filed on September 1, 1970, he wrote therein the
name of Preciosa B. Banaticla as his spouse. Faced with these documents and the
23

presumption that a man and a woman deporting themselves as husband and wife have
entered into a lawful contract of marriage, Preciosa B. Garcia can be reasonably believed
to be the surviving spouse of the late Amado G. Garcia. Semper praesumitur pro
matrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of
Appeals, this Court under its supervisory authority over all inferior courts may properly
25

decree that venue in the instant case was properly assumed by and transferred to Quezon
City and that it is in the interest of justice and avoidance of needless delay that the
Quezon City court's exercise of jurisdiction over the settlement of the estate of the
deceased Amado G. Garcia and the appointment of special administratrix over the latter's
estate be approved and authorized and the Court of First Instance of Laguna be
disauthorized from continuing with the case and instead be required to transfer all the
records thereof to the Court of First Instance of Quezon City for the continuation of the
proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the
"Urgent Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp.
Proc. No. Q-19738, subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar
Estate to deliver to her as special administratrix the sum of P48,874.70 for payment of the
sum of estate obligations is hereby upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No.
L-40502 and in G.R. No. L42670 are hereby denied, with costs against petitioner.

SO ORDERED.

2. G.R. No. L-48585 March 3, 1980

FELICIANO DE GUZMAN, petitioner,

vs.
THE HONORABLE TEOFILO GUADIZ, JR., Judge of the Court of First Instance of
Nueva Ecija, Branch V, Gapan, and JULIAN VILLEGAS, NATIVIDAD VILLEGAS,
GEMINIANO VILLEGAS, CESAR VILLEGAS, MAXIMO MATIAS, ROSARIO VILLEGAS
MATIAS, ANA MARIE V. MATIAS, and LOURDES V. MATIAS, respondents.
C. C. Paralejo for petitioner.

A.R. Reyes respondents

FERNANDEZ, J.:

This is a petition for certiorari instituted b Feliciano de Guzman against Honorable Teofilo
Guadiz, Jr. Judge of the Court of First Instance of Nueva Ecija, Branch V, Gapan, and
Julian Villegas, Natividad Villegas, Geminiano Villegas, Cesar Villegas, Maximo Matias,
Rosario Villegas Matias, Ana Marie V. Matias, and Lourdes V. Matias, seeking the
following relief.

WHEREFORE, petitioner most respectively prays:

a) That respondents be ordered to answer this petition;

b) That after hearing the Order of respondent Judge dated December 23, 1977 denying
petitioner's Motion for Appointment of a Special Administrator and consequently, the
Order dated July 15, 1978 denying petitioners Motion for Reconsideration be annulled and
that said respondent Judge be declared to have committed a grave abuse of discretion
amounting to lack or excess of jurisdiction in refusing the appointment of the Special
Administrator;

c) That respondent Judge be directed to appoint a Special Administrator pending the

probate of the Last Will of Catalina Bajacan.

Petitioner respectfully prays for such other relief just and equitable in the premises.

Manila, Philippines, August 14, 1978. 1

On August 31, 1978, without giving due course to the instant petition, this Court adopted a
resolution directing the respondents to comment thereon within ten (10) days from notice
thereof. 2

The respondents filed on October 10, 1978 their comment dated October 9, 1978. 3

Meanwhile, on September 29, 1978, the petitioner submitted a Constancia manifesting that
the respondent judge cancelled the hearing on the petition for probate of the will
scheduled on September 20, 1978 "pending the outcome of the case before the Supreme
Court." 4

On October 18. 1978, this Court resolved: a) to GIVE DUE COURSE to the petition; and b)
to REQUIRE (1) the petitioner to deposit P80.40 for costs and clerk's commission within
five (5) days from notice thereof, and (2) both parties to submit simultaneous memoranda
within thirty (30) days from notice thereof.
5

Both petitioner and respondents having filed their respective memoranda, on December
6

6, 1978, this Court resolved to declare this case submitted for decision. 7

The record discloses that on March 16, 1977, the petitioner filed a petition with the Court of
First Instance of Nueva Ecija, Branch V, Gapan, docketed as Special Proceeding No.
865 for the probate of a will alleged to have been executed by one Catalina Bajacan
8

instituting the herein petitioner as sole and universal heir and naming him as executor;
that Catalina Bajacan died on February 3, 1977; that on May 10, 1977, the private
respondents filed a motion to dismiss and/or opposition contending, among others, that all
the real properties of Catalina Bajacan are now owned by them by virtue of a Deed of
Donation Intervivos executed on June 19, 1972 by Arcadia Bajacan and Catalina Bajacan
in their favor; that on September 30, 1977, the respondent judge resolved to defer
9

resolution on the said motion to dismiss until the parties shall have presented their
evidence; that a motion for the appointment of a special administrator was filed by the
10 11

petitioner on September 23, 1977 alleging that the unresolved motion to dismiss would
necessarily delay the probate of the will and the appointment of an executor; that the
decedent's estate consists of eighty (80) hectares of first class agricultural rice land, more
or less, yielding fifty thousand pesos (P50,000.00) worth of rice harvested twice a year;
that somebody representing the estate should collect and receive the palay harvests
pending the probate of the will; that on December 23, 1977, the respondent judge issued
an order denying the motion for appointment of a special administrator, the pertinent
portion of which reads:

The appointment of a special administrator is predicated on the necessity of enabling

somebody to take care of the properties where there is a considerable delay in the
appointment of a regular administrator. In the present case, since the properties covered
by the will are undoubtedly in the possession of the oppositors who claim to be the owners
thereof, the Court sees no necessity of appointing a special administrator.

WHEREFORE, in view of the foregoing, the Court hereby denies the motion for the
appointment of a special administrator filed by the petitioner dated September 22,
1977 ...12

that on June 5, 1978, the petitioner filed a motion for reconsideration of the order dated
December 23, 1977 ; that said motion was also denied by the respondent judge in an
13

order dated June 9, 1978 which states:

In a motion for reconsideration filed by the petitioner on June 5, 1978 praying for a
reconsideration of the Order dated Dec. 23, 1977, which denied the motion for
appointment of a Special Administrator filed by him, it is alleged that the Court made a
premature determination of ownership and possession of the oppositors over the
properties of the estate of Catalina Bajacan. This assertion is not accurate. What the
Court merely stated in said Order is that the oppositors, who claim to be the owners, are in
possession of the properties covered by the Will.

WHEREFORE, in view of the foregoing, the Court hereby:

xxx xxx xxx

(b) denies the motion for reconsideration filed by petitioner on June 5, 1978. 14

The main issue in this case is whether the respondent judge presiding the Court of First
Instance of Nueva Ecija, Branch V. Gapan, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the order dated December 23, 1977
denying petitioner's motion for the appointment of a special administrator and the order
dated June 9, 1978, denying petitioner's motion for reconsideration.

It is the petitioner's contention that the respondent judge acted with grave abuse of
discretion amounting to lack or excess of jurisdiction because the facts warrant the
appointment of a special administrator of the estate of Catalina Bajacan.

Rule 80, Sec. 1, of the Revised Rules of Court provides:

Section 1 — Appointment of Special Administrator — When there is delay in granting

letters testamentary or of administration by any cause including an appeal from the
allowance or disallowance of a will, the court may appoint a special administrator to take
possession and charge of the estate of the deceased until the questions causing the delay
are decided and executors or administrators appointed.

Under the above rule, the probate court may appoint a special administrator should 15

there be a delay in granting letters testamentary or of administration occasioned by any

cause including an appeal from the allowance or disallowance of a will. Subject to this
qualification, the appointment of a special administrator lies in the discretion of the
Court. This discretion, however, must be sound, that is, not whimsical, or Contrary to
16

reason, justice, equity or legal principle.

17

The basis for appointing a special administrator under the Rules is broad enough to
include any cause or reason for the delay in granting letters testamentary or of
administration as where a contest as to the will is being carried on in the same or in
another court, or where there is an appeal pending as to the proceeding on the removal of
an executor or administrator, or in cases where the parties cannot agree among
themselves. 18
Likewise, when from any cause general administration cannot be
immediately granted, a special administrator may be appointed to collect and preserve the
property of the deceased.

It is obvious that the phrase "by any cause" includes those incidents which transpired in
the instant case clearly showing that there is a delay in the probate of the will and that the
granting of letters testamentary will consequently be prolonged necessitating the
immediate appointment of a special administrator.

The facts justifying the appointment of a special administrator are:

(1) Delay in the hearing of the petition for the probate of the win.

(2) The basis of the private respondents' claim to the estate of Catalina Bajacan and
opposition to the probate of the will is a deed of donation dated June 19, 1972 allegedly
executed by the deceased Catalina Bajacan and her late sister Arcadia Bajacan in their
favor.19

There is an immediate need to file an action for the annulment of such deed of donation in
behalf of the estate. Precisely, the petitioner filed Civil Case No. 1080 in the Court of First
Instance of Nueva Ecija Branch V, against the herein private respondents. The case was
dismissed by the respondent judge in an order dated June 9, 1978 on the ground that the
petitioner has no personality to file the action because although he is named heir in the
will, the said will is not yet probated. In the meantime there is nobody to sue in order to
20

protect the interest of the estate considering that the probate of the will and the
appointment of an executor will take time.

Upon the filing of this petition, the respondent judge, on motion of the private respondents,
postponed the hearing of the probate of the will which was then scheduled on August 23,
1978 to September 20, 1978. Again, in view of the motion for reconsideration of the private
respondents dated September 4, 1978, the respondent judge issued an order dated
September 12, 1978, which in part reads: ... the hearing of this case scheduled on
September 20, 1978 is hereby cancelled pending the outcome of the case before the
Supreme Court. 21

The reasons for the appointment of a special administrator are:

The reason for the practice of appointing a special administrator rests in the fact that
estates of decedents frequently become involved in protracted litigation, thereby being
exposed to great waste and losses if there is no authorized agent to collect the debts and
preserve the assets in the interim. The occasion for such an appointment usually arises
where, for some cause, such as a pendency of a suit concerning the proof of the will,
regular administration is .delayed. No temporary administration can be granted where
there is an executor in being capable of acting, however. 22

Principal object of appointment of temporary administrator is to preserve estate until it can

pass into hands of person fully authorized to administer it for benefit of creditors and
heirs.23

It appears that the estate the properties registered under the Torrens system in the name
of the deceased Catalina Bajacan consisting of eighty (80) hectares of first class
agricultural land. It is claimed that these 80 hectares produce P50,000.00 worth of palay
each harvest twice a year. Obviously there is an immediate need for a special
administrator to protect the interests of the estate as regards the products.

All the facts which warrant the appointment of a special administrator in accordance with
Rule 80, Sec. 1 of the Revised Rules of Court are present in the case at bar.

The respondent judge opined that there is no need for the appointment of a special
administrator in this case because the respondents are already in possession of the
properties covered by the will. The respondent judge has failed to distinguish between the
partisan possession of litigants from that of the neutral possession of the special
administrator under the Rules of Court. When appointed, a special administrator is
regarded, not as a representative of the agent of the parties suggesting the appointment,
but as the administrator in charge of the estate, and in fact, as an officer of the court. The
24

accountability which the court. which attaches to the office of a special administrator to be
appointed by the court is absent from the personal possession of private respondents.

The only way to test the validity of the alleged donation in favor of the private respondents
is to appoint a special adiu administrator who will have the personality to file the
corresponding action. In view of all the foregoing, respondent judge committed a grave
abuse of discretion in denying the petitioner's motion for appointment of a special
administrator.

WHEREFORE, the petition for a writ of certiorari is hereby granted and the Order of the
respondent judge dated December 23, 1977, denying petitioner's motion for appointment
of a special administrator and the order dated June 9, ,978 denying the petitioner's motion
for reconsideration are set aside. The respondent judge is ordered forthwith to
appointment a special administrator pending the probate of the last will of Catalina
Bajacan in Special Proceeding No. 865, without pronouncement as to costs.

SO ORDERED.

3. EG.R. No. L-4783 May 26, 1952

JULITA RELUCIO, petitioner,

vs.
HON. RAMON R. SAN JOSE, ETC., respondents.

Jose P. Villareal and Rosendo J. Tansinsin for petitioner. Enrique Rimando for respondent
Equitable Banking Corporation.
Guillermo Plana for claimant Godofredo M. Tinio.

PARAS, C. J.:
In special proceeding No. 70588 of the Court of First Instance of Manila, the herein
petitioner, Julita Relucio, was appointed administratrix of the testate estate of Felipe
Relucio, Sr., qualifying as such on August 24, 1925. Upon petition filed on June 27, 1950 by
Lorenzo, Rolando and Leticia Relucio, to which the petitioner filed an opposition, the Court
of First Instance of Manila issued an order on January 15, 1951, appointing Rolando
Relucio as administrator in substitution of the petitioner. The latter, failing to obtain a
reconsideration, filed a notice of appeal. Before the appeal could be perfected, Rolando
Relucio moved for the immediate execution of the order appointing him as administrator.
In the order of March 20, 1951, however, the court merely made reference to the letters of
administration issued in favor of Rolando Relucio and did not pass on the motion for
immediate execution. On April 3, 1951, Rolando Relucio filed a motion praying that the
petitioner be declared in contempt of court for failing to deliver to him, after demand, all
papers, documents, titles and properties of the estate under her administration. In the
order dated April 10, 1951, the Court of First Instance of Manila denied this motion for
contempt and appointed the Equitable Banking Corporation as special administrator
pending the appeal of the petitioner from the order of January 15, 1951. The court ruled
that the appeal suspended the appointment of Rolando Relucio as administrator; but in
the same breath it justified the appointment of the special administrator by arguing that, if
the petitioner has to remain as administratrix during the pendency of her appeal, "a
removed administrator may easily nullify such removal by interposing an appeal." Upon
denial of her motion for reconsideration, the petitioner instituted in this Court the present
petition for certiorari.

From the very position taken by the respondent Judge of the Court of First Instance of
Manila, it is plain that the motion for immediate execution of the order of January 15, 1951,
was in effect denied, with the result that the petitioner must be deemed as having the right
to continue as administratrix until her appeal is finally disposed of. It is noteworthy that the
petitioner was named in the will of Felipe Relucio, Sr., (already duly probated) not only as
administratrix but as executrix, and her substitution by Rolando Relucio in virtue of the
appealed order of January 15, 1951 is not for any cause, but is based solely on the
circumstance that Rolando Relucio is an heir. At any rate, as already noted, the
respondent Judge had not seen fit to order, for any special reason, the immediate
execution of the order of January 15, 1951.

The cases in which a special administrator may be appointed are specified in section 1 of
Rule 81 of the Rules of Court which provides as follows: "When there is delay in granting
letters testamentary or of administration occasioned by an appeal from the allowance or
disallowance of a will, or from any other cause, the court may appoint a special
administrator to collect and take charge of the estate of the deceased and executors or
administrators thereupon appointed." A special administrator may also be appointed in a
case covered by section 8 of Rule 87 which provides as follows: "If the executor or
administrator has a claim against the estate he represents, he shall give notice thereof, in
writing, to the court, and the court shall appoint a special administrator who shall, in the
adjustment of such claim, have the same power and be subject to the same liability as the
general administrator or executor in the settlement of other claims. The court may order
the executor or administrator to pay to the special administrator necessary funds to
defend such claim."

There is no pretense that the case at bar is one falling under either section 1 of Rule 81 or
section 8 of Rule 87. In any view of the case, there is a regular administrator. Pending her
appeal from the order of January 15, 1951, the petitioner had the right to act as
administratrix. If the respondent Judge had decreed the immediate execution of the order
of January 15, 1951, Rolando Relucio would then be the administrator pending petitioner's
appeal. Consequently, the respondent Judge exceeded his jurisdiction in appointing the
respondent Equitable Banking Corporation as special administrator.

Wherefore, the petition is hereby granted and the order of the respondent Judge of April
10, 1951, appointing the Equitable Banking Corporation as special Administrator is set
aside, without costs. So ordered.

4. G.R. No. 78590 June 20, 1988

PEDRO DE GUZMAN, petitioner,

vs.
THE HONORABLE JUDGE ZOSIMO Z. ANGELES, RTC BRANCH 58, MAKATI,
METRO, MANILA; DEPUTY SHERIFFS JOSE B. FLORA and HONORIO SANTOS and
ELAINE G. DE GUZMAN, respondents.

Bautista, Picazo, Cruz, Buyco and Tan for private respondent.

Ponce Enrile, Cayetano, Bautista, Picaso and Reyes, collaborating counsel for private
respondent. No notice was given to pedro de guzman

GUTIERREZ, JR., J.:

May a probate court act on and/or grant motions for the appointment of a special administrator, for the issuance of a writ of
possession of alleged properties of the deceased person, and for assistance to preserve the estate in a petition for the
settlement of the intestate estate even before the court has caused notice to be served upon all interested parties pursuant to
section 3, Rule 79 of the Revised Rules of Court?

On May 5, 1987, private respondent Elaine G. de Guzman filed a petition for the settlement
of the intestate estate of Manolito de Guzman, before the Regional Trial Court of Makati,
Metro Manila. The case was docketed as Special Proceedings .No. M-1436.

The petition alleges that: (1) on March 22,1987, Manolito de Guzman died in Makati, Metro
Manila; (2) at the time of his death, the decedent was a resident of Makati, Metro Manila;
(3) decedent left personal and real properties as part of his estate, listed in Annexes "A,"
"B," "C" and "D;" (4) the properties were acquired after the marriage of the petitioner to the
decedent and therefore are included in their conjugal partnership; (5) the estate of -the
decedent has a probable net value which may be provisionally assessed at P4,000,000.00
more or less; (6) the possible creditors of the estate, who have accounts payable. and
existing claims against the firm — C. SANTOS Construction are listed in Annex "E;" (7)
the compulsory heirs of the decedent are the as the surviving spouse and their two (2)
minor children namely: Charmane Rose de Guzman 11 years and Peter Brian de Guzman,
9 years old; (8) after diligent search and inquiry to ascertain whether the decedent left a
last will and testament, none has been found and according to the best knowledge
information and belief of the petitioner, Manolito de Guzman died intestate; and (9) the
petitioner as the survey surviving spouse of the decedent, is most qualified and entitled to
the grant of letters of administration.

On May 22, 1987, the private respondent filed a motion for writ of possession over five (5)
— vehicles registered under the name of Manolito de Guzman, alleged to be conjugal
properties of the de Guzman's but which are at present in the possession of the private
respondent's father-in- law, herein petitioner Pedro de Guzman. The motion stated that as
co-owner and heir, the private respondent must have the possession of said vehicles in
order to preserve the assets of her late husband. On the same day, the lower court issued
an order setting for hearing the motion on May 27, 1987 directing the deputy sheriff to
notify petitioner Pedro de Guzman at the expense of the private respondent.

The scheduled May 27, 1987 hearing was postponed on motion of petitioner's counsel,
Atty. Ricardo Fojas. The petitioner was also given three (3) days from May 27, 1987 to give
his comment on the motion for a writ of possession. The hearing was reset to June 5, 1987
at 3:00 p.m.

On May 29, 1987, the petitioner's counsel filed a notice of appearance and an "Urgent
Motion For Extension of Time to File an Opposition and for Resetting of the Hearing."

The motion was granted and the petitioner was given five (5) days from receipt of the
order within which to file his opposition to the motion for a writ of possession. The hearing
was reset to June 15, 1987 at 2:00 in the afternoon.

In the meantime, on May 28, 1987, the private respondent filed her "Ex-Parte Motion to
Appoint Petitioner as Special Administratrix of the Estate of Manolito de Guzman."

In an order dated May 28,1987, the aforesaid motion was set for hearing on June 5, 1987.
In this same order, the lower court directed that all parties in the case be notified. However,
no notice of the order was given to the petitioner.

In an order dated June 5, 1987, the lower court granted the private respondent's motion to
be appointed as special administratrix, to wit:
Finding the motion for appointment of special administratrix, on the ground alleged therein
to be well-founded, and finding further that it is to be the best interest of the Estate of
Manolito de Guzman that petitioner-movant Elaine G. de Guzman, be appointed as
Special Administratrix in this case, said motion is granted.

WHEREFORE, Elaine G. de Guzman, petitioner-movant, is hereby appointed as Special

Administratrix of the Estate of the deceased Manolito de Guzman, pending appointment of
a regular administrator. The bond for the said special administratrix is hereby fixed in the
amount of P200,000.00. (Rollo, p. 40)

On June 8, 1987, the lower court issued another order, to wit:

Acting on the Urgent Ex-Parte Motion for Assistance" filed by Petitioner-Special

Administratrix Elaine de Guzman for appointment of Deputy Sheriffs Honorio Santos and
Jose B. Flora together with some military men and/or policemen to assist her in preserving
the estate of Manolito de Guzman, the motion is granted and the Deputy Sheriffs Honorio
Santos and Jose B. Flora are hereby appointed for that purpose, provided that the subject
matter of the motion for writ of possession pending before this Court shall not be affected.
(Rollo, p. 41)

Trouble ensued when the respondents tried to enforce the above order. The petitioner
resisted when Deputy Sheriffs Jose B. Flora and Honorio Santos tried to take the subject
vehicles on the ground that they were his personal properties. According to the petitioner,
this resulted in a "near shoot-out between members of the Makati Police, who were to
maintain peace and order, and the CAPCOM soldiers who were ostensibly aiding
respondent sheriffs and Elaine G. de Guzman" and that "the timely arrival of Mayor
Jejomar Binay of Makati defused the very volatile situation which resulted in an agreement
between the parties that the bulldozer, sought to be taken, be temporarily placed in the
custody of Mayor Binay, while the parties seek clarification of the order from respondent
Judge Zosimo Angeles the next day, June 9, 1981 at 10:30 a.m."

In the conference held before the respondent court attended by the counsels for both
parties, the June 8, 1987 order was clarified to the effect that the order "must be merely to
take and preserve assets admittedly belonging to the estate, but not properties, the
ownership of which is claimed by third persons."

The petitioner then filed a manifestation listing properties which he claimed to be his own.

Thereafter, the instant petition was filed to annul the lower court's orders dated June 5,
1987 and June 8, 1987.

In a resolution dated June 10, 1987, we issued a temporary restraining order enjoining the
respondent court from enforcing the two questioned orders. In another resolution dated
October 28, 1987, we gave due course to the petition.
The petitioner contends that the June 5, 1987 order is a patent nullity, the respondent court
not having acquired jurisdiction to appoint a special administratrix because the petition for
the settlement of the estate of Manolito de Guzman was not yet set for hearing and
published for three consecutive weeks, as mandated by the Rules of Court. The petitioner
also stresses that the appointment of a special administratrix constitutes an abuse of
discretion for having been made without giving petitioner and other parties an opportunity
to oppose said appointment.

Anent the June 8, 1987 order, the petitioner alleges that the immediate grant of the motion
praying for the court's assistance in the preservation of the estate of the deceased,
"without notice to the petitioner Pedro de Guzman, and its immediate implementation on
the very same day by respondent Elaine G. de Guzman with the assistance of
respondents deputy sheriffs, at no other place but at the home of the petitioner Pedro de
Guzman, are eloquent proofs that all the antecedent events were intended solely to
deprive petitioner de Guzman of his property without due process of law." He also prays
that the respondent Judge be disqualified from further continuing the case.

As stated earlier, the pivotal issue in the instant petition hinges on whether or not a
probate court may appoint a special administratrix and issue a writ of possession of
alleged properties of a decedent for the preservation of the estate in a petition for the
settlement of the intestate estate of the said deceased person even before the probate
court causes notice to be served upon all interested parties pursuant to section 3, Rule 79
of the Revised Rules of Court.

As early as March 18, 1937, in the case of Santos v. Castillo (64 Phil. 211) we ruled that
before a court may acquire jurisdiction over the case for the probate of a will and the
administration of the properties left by a deceased person, the application must allege the
residence of the deceased and other indispensable facts or circumstances and that the
applicant is the executor named in the will or is the person who had custody of the will to
be probated.

In the instant case, there is no doubt that the respondent court acquired jurisdiction over
the proceedings upon the filing of a petition for the settlement of an intestate estate by the
private respondent since the petition had alleged all the jurisdictional facts, the residence
of the deceased person, the possible heirs and creditors and the probable value of the
estate of the deceased Manolito de Guzman pursuant to Section 2, Rule 79 of the Revised
Rules of Court.

We must, however, differentiate between the jurisdiction of the probate court over the
proceedings for the administration of an estate and its jurisdiction over the persons who
are interested in the settlement of the estate of the deceased person. The court may also
have jurisdiction over the "estate" of the deceased person but the determination of the
properties comprising that estate must follow established rules.

Section 3, Rule 79 of the Revised Rules of Court provides:

Court to set time for hearing. — Notice thereof. — When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and place
for hearing the petition, and shall cause notice thereof to be given to the known heirs and
creditors of the decedent, and to any other persons believed to have an interest in the
estate, in the manner provided in sections 3 and 4 of Rule 76.

It is very clear from this provision that the probate court must cause notice through
publication of the petition after it receives the same. The purpose of this notice is to bring
all the interested persons within the court's jurisdiction so that the judgment therein
becomes binding on all the world. (Manalo v. Paredes, 47 Phil. 938; Moran, Comment on
the Rules of Court Volume 3,1980 Edition) Where no notice as required by Section 3, Rule
79 of the Rules of Court has been given to persons believed to have an interest in the
estate of the deceased person; the proceeding for the settlement of the estate is void and
should be annulled. The requirement as to notice is essential to the validity of the
proceeding in that no person may be deprived of his right to property without due process
of law. (Eusebio v. Valmores, 96 Phil. 163).

Verily, notice through publication of the petition for the settlement of the estate of a
deceased person is jurisdictional, the absence of which makes court orders affecting other
persons, subsequent to the petition void and subject to annulment. (See Eusebio v.
Valmores, supra)

In the instant case, no notice as mandated by section 3, Rule 79 of the Revised Rules of
Court was caused to be given by the probate court before it acted on the motions of the
private respondent to be appointed as special administratrix, to issue a writ of possession
of alleged properties of the deceased person in the widow's favor, and to grant her motion
for assistance to preserve the estate of Manolito de Guzman.

The "explanation" which we required of the respondent Judge for his apparent haste in
issuing the questioned orders, states:

xxx xxx xxx

10. In issuing the subject Orders, undersigned acted in the honest conviction that it would
be to the best interest of the estate without unduly prejudicing any interested party or third
person. Any delay in issuing the said Orders might have prejudiced the estate for the
properties may be lost, wasted or dissipated in the meantime. (Rollo, p. 86)

xxx xxx xxx

This explanation while seemingly plausible does not sufficiently explain the disregard of
the Rule. If indeed, the respondent court had the welfare of both the estate and the person
who have interest in the estate, then it could have caused notice to be given immediately
as mandated by the Revised Rules of Court. All interested persons including herein
petitioner who is the biggest creditor of the estate listed in the Petition (P850,240.80) could
have participated in the proceedings especially so, because the respondent immediately
filed a motion to have herself appointed as administratrix. A special administrator has
been defined as the "representative of decedent appointed by the probate court to care for
and preserve his estate until an executor or general administrator is appointed." (Jones v.
Minnesota Transfer R. Co. 1965 ed., at 106 cited in Fule v. Court of Appeals, 74 SCRA 189).
The petitioner as creditor of the estate has a similar interest in the preservation of the
estate as the private respondent who happens to be the widow of deceased Manolito de
Guzman. Hence, the necessity of notice as mandated by the Rules of Court. It is not clear
from the records exactly what emergency would have ensued if the appointment of an
administrator was deferred at least until the most interested parties were given notice of
the proposed action. No unavoidable delay in the appointment of a regular administrator is
apparent from the records.

As argued by the petitioner:

The position of special administrator, by the very nature of the powers granted thereby, is
one of trust and confidence. It is a fiduciary position and, therefore, requires a
comprehensive determination of the suitability of the applicant to such position. Hence,
under Philippine jurisprudence, it has been settled that the same fundamental and legal
principles governing the choice of a regular administrator should be taken in choosing the
special administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v. Pecson,
Ibid. and Roxas v. Pecson, Ibid.)

In order to fully and correctly ascertain the suitability of the applicant to the trust,
a hearing is obviously necessary wherein the applicant can prove his qualifications and at
the same time affording oppositors, given notice of such hearing and application, the
opportunity to oppose or contest such application.

The requirement of a hearing and the notification to all the known heirs and other
interested parties as to the date thereof is essential to the validity of the proceeding for the
appointment of an administrator "in order that no person may be deprived of his right or
property without due process of law" (Eusebio v. Valmores, 97 Phil. 163). Moreover, a
hearing is necessary in order to fully determine the suitability of the applicant to the trust,
by giving him the opportunity to prove his qualifications and affording oppositors, if any, to
contest the said application. (Matute v. Court of Appeals, 26 SCRA 770; emphasis
supplied).

Since the position of special administrator is a very sensitive one which requires trust and
confidence, it is essential that the suitability of the applicant be ascertained in a hearing
with due notice to all oppositors who may object precisely to the applicant's suitability to
the trust. (Rollo, pp. 103-104)

If emergency situations threatening the dissipation of the assets of an estate justify a

court's immediately taking some kind of temporary action even without the required notice,
no such emergency is shown in this case. The need for the proper notice even for the
appointment of a special administrator is apparent from the circumstances of this case.

The respondent Judge himself explains that the order for the preservation of the estate
was limited to properties not claimed by third parties. If certain properties are already in
the possession of the applicant for special administratrix and are not claimed by other
persons, we see no need to hurry up and take special action to preserve those properties.
As it is, the sheriffs took advantage of the questioned order to seize by force, properties
found in the residence of the petitioner which he vehemently claims are owned by him and
not by the estate of the deceased person.

The petitioner also asks that the respondent Judge be disqualified from continuing with
the proceedings of the case on the ground that he is partial to the private respondent.

In view of the fact that the respondent Judge in his "Explanation" requests that he be
inhibited from further active on the case, this issue has now become academic. We accept
Judge Angeles" voluntary inhibition in line with our ruling in Pimentel v. Salanga (21 SCRA
160). As we stated in Query of Executive Judge Estrella T. Estrada, Regional Trial Court
of Malolos, Bulacan on the conflicting views of Regional Trial Court—Judges Manalo and
Elisaga Re: Criminal Case No. 4954 — M Administrative Matter No. 87-9-3918-RTC,
October 26, 1987:

xxx xxx xxx

... A judge may not be legally prohibited from sitting in a litigation. But when suggestion is
made of record that he might be induced to act in favor of one party or with bias or
prejudice against a litigant arising out of circumstances reasonably capable of inciting
such a state of mind, he should conduct a careful self-examination. He should exercise his
discretion in a way that the people's faith in the courts of justice is not impaired. A salutary
norm is that he reflect on the probability that a losing party might nurture at the back of his
mind the thought that the judge had unmeritoriously tilted the scales of justice against him.
That passion on the part of a judge may be generated because of serious charges of
misconduct against him by a suitor or his counsel, is not altogether remote. He is a man,
subject to the frailties of other men. He should, therefore, exercise great care and caution
before making up his mind to act or withdraw from a suit Where that party or counsel is
involved. He could in good grace inhibit himself where that case could be heard by
another judge and where no appreciable prejudice would be occasioned to others
involved thereon. On the result of his decisions to sit or not sit may depend to a great
extent that all-important confidence in the impartiality of the judiciary. If after reflection he
should resolve to voluntarily desist from sitting in a case where his motives or fairness
might be seriously impugned, his action is to be interpreted as giving meaning and
substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law
who forestalls miscarriage of justice.
Considering the foregoing, we find no need to discuss the other issues raised in the
petition.

WHEREFORE, the instant petition is GRANTED. The questioned orders of the Regional
Trial Court, Branch 58 of Makati are hereby set aside. The case is ordered remanded to
the lower court for the hearing of the petition with previous notice to all interested parties
as required by law. In view of the voluntary inhibition of the respondent Judge, the
Executive Judge of the Regional Trial Court, Makati is directed to re-raffle the case to
another branch of the court. The Temporary Restraining Order dated June 10, 1987 is
made permanent. No costs.

SO ORDERED.

5. HEIRS OF BELINDA DAHLIA G.R. No. 162934

A. CASTILLO, namely, BENA
JEAN, DANIEL, MELCHOR, Present:
MICHAEL and DANIBEL, all
surnamed CASTILLO, PUNO, J., Chairman,
Petitioners, AUSTRIA-MARTINEZ, Dolores was the widow of the adopted child of crisanta
CALLEJO, SR., - versus - DOLORES LACUATA-GABRIEL, November 11, 2005

x-------------------------------------------------

This is a petition for review on certiorari of the Decision[1] of the

Court of Appeals (CA) in CA-G.R. SP No. 70645, as well as its

Resolution[2] denying the motion for reconsideration thereof.

On January 25, 1989, Crisanta Yanga-Gabriel, wife of Lorenzo B.

Almoradie, died in Malabon City, Metro Manila, leaving behind a sizable

inheritance consisting mostly of real estate and shares of stock.[3]

A little over a month after Crisantas death, her mother, Crisanta

Santiago Vda. de Yanga, commenced an intestate proceeding before the

Regional Trial Court (RTC) of Malabon City, Branch 72, docketed as

Spec. Proc. No. 192-MN. She alleged, among others, that to her

knowledge, her daughter died intestate leaving an estate with an

estimated net value of P1,500,000.00 and that such estate was being

managed by her wastrel and incompetent son-in-law, Lorenzo, and by

two other equally incompetent persons. She prayed that letters of

administration be issued to her son, Mariano Yanga, Jr., also the brother

of the deceased, and that she be awarded her share of the estate of her

daughter after due hearing.[4] However, the RTC appointed Lorenzo as

administrator.

Meantime, the marriage between Crisanta Yanga-Gabriel and

Lorenzo Almoradie was declared void for being bigamous. The RTC then

removed Lorenzo as administrator and appointed Mariano, Jr. in his

stead.[5]

On October 16, 1989, one Belinda Dahlia Y. Almoradie Castillo,

claiming to be the only legitimate child of Lorenzo and Crisanta, filed a

motion for intervention.[6] Resolution on this motion was, however, held

in abeyance pending some incidents in the CA.

 On November 3, 1989, Roberto Y. Gabriel, the legally adopted son

of Crisanta Y. Gabriel, filed before the RTC of Malabon City a petition

for probate of an alleged will and for the issuance of letters testamentary

in his favor. The petition was docketed as Spec. Proc. No. 211-MN. [7] He

alleged that he discovered his mothers will on October 25, 1989 in which

he was instituted as the sole heir of the testatrix, and designated as

alternate executor for the named executor therein, Francisco S. Yanga, a

brother of Crisanta, who had predeceased the latter sometime in 1985 or

1986.

On June 2, 1990, Belinda Castillo died.

The two (2) special proceedings were consolidated. On May 15,

1991, the RTC issued an Order dismissing the intestate proceedings, Spec.

Proc. No. 192-MN.[8] Mariano Yanga, Jr. questioned the dismissal of the

intestate proceedings before the appellate court via a petition

for certiorari (CA-G.R. SP No. 25897).

On July 8, 1991, the probate court appointed Roberto Y. Gabriel as

special administrator of his mothers estate.[9]

 On May 23, 2001, the heirs of Belinda, namely, Bena Jean, Daniel,

Melchor, Michael, and Danibel, all surnamed Castillo, filed a

Motion[10] praying that they be substituted as party-litigants in lieu of their

late mother Belinda, who died in 1990.

On April 16, 2001, Roberto Gabriel died. His widow, Dolores L.

Gabriel, filed a Manifestation and Motion[11] where she informed the

probate court of her husbands death and prayed that she be admitted as

substitute in place of her late husband, and be appointed as administratrix

of the estate of Crisanta Gabriel as well. She alleged that she had a

bachelors degree in law and had worked for several years in a law

office.[12]

On August 14, 2001, the heirs of Belinda opposed Dolores

manifestation and motion. They averred that Dolores was not Crisanta

Gabriels next of kin, let alone the lawful wife of the late Roberto.[13] This

elicited a Reply[14] from Dolores where she refuted these allegations.

On August 24, 2001, Bena Jean filed a Motion for Appointment as

Administrator of the Estate of Crisanta Y. Gabriel[15] praying that she be

appointed administratrix of the estate of her grandmother Crisanta.

 On October 11, 2001, Dolores opposed the motion of Bena Jean,

claiming that the latter has neither proven her kinship with Crisanta

Gabriel nor shown any particular qualification to act as administratrix of

the estate.[16]

On November 28, 1991, the CA dismissed the petition

for certiorari of Mariano Yanga, Jr. in CA-G.R. SP No. 25897.

In a Resolution[17] dated December 5, 2001, the lower court

appointed Dolores as special administratrix upon a bond of P200,000.00.

The probate court merely noted the motion for substitution filed by the

heirs of Belinda,

stating that they were mere strangers to the case and that their cause could

better be ventilated in a separate proceeding. According to the trial court

Contrary to the assertions of Oppositors Heirs of Belinda A.
Castillo, movant Dolores L. Gabriel has amply proven her kinship with
petitioner Roberto Y. Gabriel, and therefore her kinship, by operation
of law, with decedent Crisanta Y. Gabriel. In the probate proceedings,
this Court has the power to determine questions as to who are the heirs
of the decedent , the recognition of a natural child , the validity of
disinheritance effected by the testator and the status of a woman who
claims to be the lawful wife of the decedent. ...

Guided by the foregoing precepts, this Court is of the opinion, and so

holds, that movant Dolores L. Gabriel has established her claim that
she is the lawfully wedded wife of petitioner Roberto Y. Gabriel and
that the previous marriage between petitioner and one Lucita V. Cruz
was already long dissolved prior to the celebration of marriage
between petitioner and movant Dolores L. Gabriels marriage in July 4,
1997.
 And even assuming that movant Dolores L. Gabriels lawful
relationship with petitioner, and corollarily with the decedent, was not
proven, the stringent rules regarding the order of preference in the
appointment of an Administrator does not find application in the
instant case for what is at stake here is the appointment of a Special
Administrator as such position was vacated by the death of the
previously appointed Special Administrator in the person of petitioner
herein. The reason for the relaxation of the rules regarding the
appointment of a Special Administrator is the nature of its position,
being merely temporary and will subsist only until a regular
administrator or executor is appointed.

In view thereof, movant Dolores L. Gabriel is hereby appointed

as Special Administrator of the estate of decedent Crisanta Y. Gabriel,
and upon posting of a bond in the amount of P200,000.00 pursuant to
the mandate of Section 4, Rule 81 of the Rules of Court, may assume
the functions and duties of such Special Administrator.

SO ORDERED.[18]

The heirs of Belinda moved to reconsider.[19] In the meantime, Dolores

took her oath of office on January 11, 2002.[20]

The probate court denied the motion for reconsideration filed by Belindas

heirs in its Order[21] dated March 19, 2002. The said heirs then filed with

the CA a petition for certiorari with prayer for a temporary restraining

order or/and preliminary injunction against Dolores and the probate court.

The case was docketed as CA-G.R. SP No. 70645. They prayed, among

others, that Bena Jean be appointed as the regular administratrix of

Crisanta Gabriels estate, thus

 WHEREFORE, premises considered, petitioners most
respectfully pray that:

1. Upon filing of this petition and in order not to prejudice

the rights of petitioners, a temporary restraining order and/or writ
of preliminary injunction be issued against respondent Dolores L.
Gabriel enjoining her to cease and desist from acting as special
administratrix of the estate of Crisanta Y. Gabriel;

2. After hearing and consideration, a writ of preliminary

injunction be issued against respondent Dolores L. Gabriel to
cease and desist from acting as special administratrix of Crisanta
Y. Gabriel until further order from this Honorable Court;

3. An Order be issued nullifying and setting aside the

assailed Orders dated December 5, 2001 and March 19, 2002 both
issued by the respondent Judge for having been rendered with
grave abuse of discretion amounting to lack of jurisdiction and for
this Honorable Court to issue a new one by appointing petitioner
Bena Jean A. Castillo as regular administratrix of the estate of
Crisanta Y. Gabriel.

Petitioner likewise prays for such other just, fair and equitable
relief under the premises.[22]

On October 30, 2003, the appellate court dismissed the petition in

CA-G.R. SP No. 70645. It ruled that the probate court did not commit

grave abuse of discretion in appointing Dolores as special

administratrix.[23]

The heirs of Belinda Dahlia Castillo, now the petitioners, filed the

instant petition for review on certiorari against Dolores Lacuata-Gabriel,

assigning the following errors

 A

WITH DUE RESPECT, THE DECISION DATED OCTOBER 30,

2003 RENDERED BY THE HONORABLE COURT OF APPEALS IS
BASED ON A MISAPPREHENSION OF FACTS.

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS

ERRED IN RULING THAT PRIVATE RESPONDENT DOLORES
LACUATA-GABRIEL IS ENTITLED TO THE ADMINISTRATION
OF THE ESTATE OF CRISANTA Y. GABRIEL, SHE BEING THE
HEIR OF HER DECEASED HUSBAND WHOSE ESTATE IS THE
FORMER ESTATE OF HIS ADOPTING MOTHER CRISANTA AS
THE SAME IS CONTRARY TO THE LAW ON SUCCESSION.

THE APPOINTMENT OF PRIVATE RESPONDENT DOLORES

LACUATA-GABRIEL IS CONTRARY TO THE RULING LAID
DOWN BY THIS HONORABLE COURT IN THE CASE OF
GONZALEZ VS. GUIDO, 190 SCRA 112.

THE HONORABLE COURT OF APPEALS ERRED IN RULING

THAT IT IS SECTION 1, RULE 80 AND NOT SECTION 6, RULE 78
OF THE RULES OF COURT WHICH IS APPLICABLE IN THIS
CASE.[24]

The assigned errors in this case boil down to the propriety of the

appointment of respondent as special administratrix of the estate left by

Crisanta Yanga-Gabriel.
The petitioners argue that since the respondent does not have any right to

inherit from their grandmother, either by her own right or by the right of

representation, she is not qualified to be appointed as administratrix of the

estate; in contrast, they are Crisanta Gabriels only compulsory heirs. They

insist that the respondents late husband, Roberto, was just a nephew of

the decedent and not a legally adopted son as he claimed to be. Even

assuming

this claim was true, the fact that the respondent is not naturally related to

the decedent by blood in the direct descending line makes it unfair to

appoint her as the special administratrix. Citing jurisprudence, the

petitioners explain that the principal consideration in the appointment of

administrator of a deceased persons estate is the applicants interest

therein. This is the same consideration which Section 6,[25] Rule 78 of the

Rules of Court takes into account in establishing the order of preference

in the appointment of such administrators. The underlying assumption

behind this rule, the petitioners insist, is that those who will reap the

benefit of a wise, speedy, economical administration of the estate, or

suffer the consequences of waste, improvidence or mismanagement, have

the highest interest and most influential motive to administer the estate

correctly. Lastly, the petitioners posit that since CA-G.R. SP No. 25897

had long been dismissed by the CA, a regular administrator of the said

estate should now be appointed.

 The petition is without merit.

In ruling against the petitioners and dismissing their petition, the

CA ratiocinated as follows:

The appointment of a special administrator lies entirely in the

discretion of the court. The order of preference in the appointment of a
regular administrator under Section 6, Rule 78 of the Rules of Court
does not apply to the selection of a special administrator. In the
issuance of such appointment, which is but temporary and subsists
only until a regular administrator is appointed, the court determines
who is entitled to the administration of the estate of the decedent. On
this point, We hold that the preference of private respondent Dolores
Gabriel is with sufficient reason.

The facts of this case show that Roberto Gabriel the legally adopted
son of Crisanta Yanga-Gabriel survived Crisantas death. When
Crisanta died on January 25, 1989, her estate passed on to her surviving
adopted son Roberto. When Roberto himself later died on April 16,
2001, pursuant to the law on succession, his own estate which he
inherited from Crisanta passed on to his surviving widow, private
respondent.

While it is true, as petitioners submit, that private respondent is

neither a compulsory nor a legal heir of Crisanta Yanga-Gabriel and is
considered a third person to the estate of Crisanta, nonetheless, private
respondent is undeniably entitled to the administration of the said
estate because she is an heir of her husband Roberto, whose estate is
the former estate of his adopting mother Crisanta.[26]

The ruling of the CA is correct. The Court has repeatedly held that

the appointment of a special administrator lies in the sound discretion of

the probate court.[27] A special administrator is a representative of a

decedent appointed by the probate court to care for and preserve his estate
until an executor or general administrator is appointed.[28] When

appointed, a special administrator is regarded not as a representative of

the agent of the parties suggesting the appointment, but as the

administrator in charge of the estate, and, in fact, as an officer of the

court.[29] As such officer, he is subject to the supervision and control of

the probate court and is expected to work for the best interests of the

entire estate, especially its smooth administration and earliest

settlement.[30] The principal object of appointment of temporary

administrator is to preserve the estate until it can pass into hands of

person fully authorized to administer it for the benefit of creditors and

heirs.[31] In many instances, the appointment of administrators for the

estates of decedents frequently become involved in protracted litigations,

thereby exposing such estates to great waste and losses unless an

authorized agent to collect the debts and preserve the assets in the interim

is appointed. The occasion for such an appointment, likewise, arises

where, for some cause, such as a pendency of a suit concerning the proof

of the will, regular administration is delayed.[32]

Section 1, Rule 80 of the Revised Rules of Court provides:

Section 1. Appointment of Special Administrator. When there is

delay in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will, the
court may appoint a special administrator to take possession and
 charge of the estate of the deceased until the questions causing the
delay are decided and executors or administrators appointed.

The new Rules have broadened the basis for the appointment of an

administrator, and such appointment is allowed when there is delay in

granting letters testamentary or administration by any cause, e.g., parties

cannot agree among themselves. Nevertheless, the discretion to appoint a

special administrator or not lies in the probate court.[33] In De Guzman v.

Guadiz, Jr.,[34] the Court further elucidated

Under the above rule, the probate court may appoint a special
administrator should there be a delay in granting letters testamentary or
of administration occasioned by any cause including an appeal from
the allowance or disallowance of a will. Subject to this qualification,
the appointment of a special administrator lies in the discretion of the
Court. This discretion, however, must be sound, that is, not whimsical,
or contrary to reason, justice, equity or legal principle.

The basis for appointing a special administrator under the Rules

is broad enough to include any cause or reason for the delay in
granting letters testamentary or of administration as where a contest as
to the will is being carried on in the same or in another court, or where
there is an appeal pending as to the proceeding on the removal of an
executor or administrator, or in cases where the parties cannot agree
among themselves. Likewise, when from any cause general
administration cannot be immediately granted, a special administrator
may be appointed to collect and preserve the property of the deceased.

It is obvious that the phrase by any cause includes those

incidents which transpired in the instant case clearly showing that there
is a delay in the probate of the will and that the granting of letters
testamentary will consequently be prolonged necessitating the
immediate appointment of a special administrator.[35]
As enunciated above, the probate court has ample jurisdiction to appoint

respondent as special administratrix. The deceased Crisanta

Yanga-Gabriel left a document purporting to be her will where her

adopted son, Roberto, was named as the sole heir of all her properties.

However, pending probate of the will, Roberto died leaving his widow,

the respondent herein, as his sole heir. Thus, the respondent has much

stake in Crisantas estate in case the latters will is allowed probate. It

needs to be emphasized that in the appointment of a special administrator

(which is but temporary and subsists only until a regular administrator is

appointed), the probate court does not determine the shares in the

decedents estate, but merely appoints who is entitled to administer the

estate. The issue of heirship is one to be determined in the decree of

distribution, and the findings of the court on the

relationship of the parties in the administration as to be the basis of

distribution.[36] Thus, the preference of respondent is sound, that is, not

whimsical, or contrary to reason, justice, equity or legal principle.

The petitioners strenuous invocation of Section 6, Rule 78 of the Rules of

Court is misplaced. The rule refers to the appointment of regular

administrators of estates; Section 1, Rule 80, on the other hand, applies to

the appointment of a special administrator. It has long been settled that

the appointment of special administrators is not governed by the rules

regarding the appointment of regular administrators.[37] Thus, in Roxas v.

Pecson,[38] this Court ruled:

It is well settled that the statutory provisions as to the prior or
preferred right of certain persons to the appointment of administrator
under Section 1, Rule 81, as well as the statutory provisions as to
causes for removal of an executor or administrator under section 653 of
Act No. 190, now Section 2, Rule 83, do not apply to the selection or
removal of special administrator. ... As the law does not say who shall
be appointed as special administrator and the qualifications the
appointee must have, the judge or court has discretion in the selection
of the person to be appointed, discretion which must be sound, that is,
not whimsical or contrary to reason, justice or equity.

On the plea of the petitioners for this Court to appoint their

co-petitioner, Bena Jean Castillo, as the regular administratrix of the

estate of Crisanta Yanga-Gabriel, the matter should be addressed to the

probate court for its consideration. It is not for this Court to preempt the

discretion of the probate court and appoint a regular administrator in the

present action.

WHEREFORE, the petition is hereby DENIED. The Decision of the

Court of Appeals in CA-G.R. SP No. 70645, dated October 30, 2003, and

its Resolution of March 26, 2004 are AFFIRMED. Costs against the

petitioners.

SO ORDERED.
 Qualifications
#6.
G.R. No. L-59821 August 30, 1982

ROWENA F. CORONA, petitioner, Rowena was the deceased niece and appo8nted as executrix, while romarico was the husband who was d
vs.
THE COURT OF APPEALS, ROMARICO G. VITUG, AVELINO L. CASTILLO,
NICANOR CASTILLO, KATHLEEN D. LUCHANGCO, GUILLERMO LUCHANGCO, JR.,
ANTONIO LUCHANGCO, RODOLFO TORRES, REYNALDO TORRES and PURISIMA
T. POLINTAN, respondents.

N.J. Quisumbing for petitioner.

Jose F. Tiburcio for respondents Luchangcos, Torres and Polintan.

Ricardo S. Inton for respondents Castillos.

Rufino V. Javier for respondent Vitug.

&

MELENCIO-HERRERA, J.: 1äwphï1.ñët

A Petition to review on certiorari the judgment of the Court of Appeals 1

(CA-G.R. No.
12404-SP) of August 11, 1981, upholding the appointment by the Court of First Instance of Rizal,
Pasig, Branch VI, of respondent Romarico G. Vitug, as Special Administrator, although in the
Will of his deceased wife, she had disinherited him, as well as the Appellate Court's Resolution
of February 17, 1982 denying reconsideration.

On November 10, 1980, Dolores Luchangco Vitug died in New York, U.S.A., leaving two
Wills: one, a holographic Will dated October 3, 1980, which excluded her husband,
respondent Romarico G. Vitug, as one of her heirs, and the other, a formal Will sworn to
on October 24, 1980, or about three weeks thereafter, which expressly disinherited her
husband Romarico "for reason of his improper and immoral conduct amounting to
concubinage, which is a ground for legal separation under Philippine Law"; bequeathed
her properties in equal shares to her sisters Exaltacion L. Allarde, Vicenta L. Faustino and
Gloria L. Teoxon, and her nieces Rowena F. Corona and Jennifer F. Way; and appointed
Rowena F. Corona, herein petitioner, as her Executrix.

On November 21, 1980, Rowena filed a petition for the probate of the Wills before the
Court of First Instance of Rizal, Branch VI (Spec.Procs. No. 9398), and for the
appointment of Nenita P. Alonte as Administrator because she (Rowena) is presently
employed in the United Nations in New York City.

On December 2, 1980, upon Rowena's urgent Motion, the Probate Court appointed Nenita
P. Alonte as Special Administratrix, upon a P100,000.00 bond.
On December 12, 1980, the surviving husband, Romarico Vitug, filed an "Opposition and
Motion" and prayed that the Petition for Probate be denied and that the two Wills be
disallowed on the ground that they were procured through undue and improper pressure
and influence, having been executed at a time when the decedent was seriously ill and
under the medical care of Dr. Antonio P. Corona,, petitioner's husband, and that the
holographic Will impaired his legitime. Romarico further prayed for his appointment as
Special Administrator because the Special Administratrix appointed is not related to the
heirs and has no interest to be protected, besides, the surviving spouse is qualified to
administer.

Oppositions to probate with almost Identical arguments and prayers were also filed by
respondent (1) Avelino L. Castillo and Nicanor Castillo, legitimate children of Constancia
Luchangco, full blood sister of the decedent; (2) Guillermo Luchangco, full blood brother of
the decedent; (3) Rodolfo Torres, Reynaldo Torres, and Purisima Torres Polintan, all
legitimate children of the deceased Lourdes Luchangco Torres, full blood sister of the
decedent.

On December 18, 1980, Nenita P. Alonte posted her bond and took her oath of office
before a Notary Public.

On February 6, 1981, the Probate Court set aside its Order of December 2, 1980
appointing Nenita as Special Administratrix, and appointed instead the surviving husband,
Romarico as Special Administrator with a bond of P200,000.00, essentially for the reasons
that under Section 6, Rule 78, of the Rules of Court, the surviving spouse is first in the
order of preference for appointment as Administrator as he has an interest in the estate;
that the disinheritance of the surviving spouse is not among the grounds of disqualification
for appointment as Administrator; that the next of kin is appointed only where the surviving
spouse is not competent or is unwilling to serve besides the fact that the Executrix
appointed, is not the next of kin but merely a niece, and that the decedent's estate is
nothing more than half of the unliquidated conjugal partnership property.

Petitioner moved for reconsideration with an alternate Motion for the appointment of
co-Special Administrators to which private respondents filed their Opposition.
Reconsideration having been denied, petitioner resorted to a Petition for certiorari before
the Court of Appeals to annul, for having been issued with grave abuse of discretion, the
Order setting aside the appointment of Nenita as Special Administratrix and appointing in
her stead the surviving spouse Romarico.

On August 11, 1981, the Court of Appeals found no grave abuse of discretion on the part of
the Probate Court and dismissed the Petition stating that the Probate Court strictly
observed the order of preference established by the Rules; that petitioner though named
Executrix in the alleged Will, declined the trust and instead nominated a stranger as
Special Administrator; that the surviving husband has legitimate interests to protect which
are not adverse to the decedent's estate which is merely part of the conjugal property; and
that disinheritance is not a disqualification to appointment as Special Administrator
besides the fact that the legality of the disinheritance would involve a determination of the
intrinsic validity of the Will which is decidedly premature at this stage.

On March 24, 1982, petitioner elevated the case to this Court for review on certiorari after
her Motion for Reconconsideration was turned down by the Court of Appeals.

Petitioner stresses that the order of preference laid down in the Rules should not be
followed where the surviving spouse is expressly disinherited, opposes probate, and
clearly possesses an adverse interest to the estate which would disqualify him from the
trust.

The three sets of Oppositors, all respondents herein, in the Comments which they
respectively filed, essentially claimed lack of grave abuse of discretion on the part of the
Appellate Court in upholding the appointment of the surviving husband as Special
Administrator; that certiorari is improper and unavailing as the appointment of a Special
Administrator is discretionary with the Court and is unappealable; that
co-administratorship is impractical and unsound and as between the surviving husband,
who was responsible for the accumulation of the estate by his acumen and who must be
deemed to have a beneficial interest in the entire estate, and a stranger, respondent Court
had made the correct choice; and that the legality of the disinheritance made by the
decedent cannot affect the appointment of a Special Administrator.

This Court, in resolving to give due course to the Petition taking into account the
allegations, arguments and issues raised by the parties, is of the considered opinion that
petitioner's nominee, Nenita F. Alonte, should be appointed as co-Special Administrator.
The executrix's choice of Special Administrator, considering her own inability to serve and
the wide latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is entitled
to the highest consideration. Objections to Nenita's appointment on grounds of
impracticality and lack of kinship are over-shadowed by the fact that justice and equity
demand that the side of the deceased wife and the faction of the surviving husband be
represented in the management of the decedent's estate. 2

En passant, it is apropos to remind the Special Administrators that while they may have
respective interests to protect, they are officers of the Court subject to the supervision and
control of the Probate Court and are expected to work for the best interests of the entire
estate, its smooth administration, and its earliest settlement.

WHEREFORE, modifying the judgment under review, the Court of First Instance of Rizal,
Branch VI, is hereby ordered, in Special Proceedings No. 9398 pending before it, to
appoint Nenita F. Alonte as co-Special Administrator, properly bonded, who shall act as
such jointly with the other Special Administrator on all matters affecting the estate.

No costs.
 Natividad is the widow, while respondents were
Brothers and sisters of deceased.
The lowert exceeded his authority in appointing
G.R. No. L-2211 December 20, 1948 2 administrator.

NATIVIDAD I. VDA. DE ROXAS, petitioner,

vs.
POTENCIANO PECSON, Judge of First Instance of Bulacan, MARIA ROXAS and
PEDRO ROXAS,respondents.

Claro M. Recto and Francisco A. Rodrigo for petitioner.

Estanislao A. Fernandez, Jr., and Gerardo M. Alfonso for respondents.

FERIA, J.:

This is a petition for certiorari filed against the respondent judge of the Court of First
Instance of Bulacan.

The facts in this case may be summarily stated as follows: Pablo M. Roxas died leaving
properties in Bulacan. The other respondents Maria and Pedro Roxas, sister and brother
respectively of the deceased, filed on August 3, 1946, a petition for the administration of
the latter's estate, in special intestate proceeding No. 1707 of the Court of First Instance of
Bulacan, and Maria Roxas was appointed special administratrix upon an ex-parte petition.
On August 10, 1946, the petitioner Natividad Vda. de Roxas, widow of Pablo M. Roxas,
filed a petition for the probate of an alleged will of her deceased husband, and for her
appointment as executrix of his estate designated is said will, and the petition was
docketed as special proceeding No. 172 of the same court. In said will the deceased
bequeathed one-half of his estate to his widow, the herein petitioner, and the other half to
Reynaldo Roxas, an adulterous child 9 years old of the decedent. Upon agreement of both
parties, the intestate proceeding No. 170 was dismissed and ordered closed by the court.

In view of the opposition to the probate of the will by the respondents Maria and Pedro
Roxas, the petitioner was appointed on September 10, 1946, special administratrix and
qualified as such over the objection of the respondents Maria and Pedro Roxas, who
sought the appointment of Maria as such. The said respondents filed on October 21, 1946,
a motion for reconsideration of the order of the court appointing the petitioner as special
administratrix, with an alternative prayer that Maria Roxas be appointed as special
co-administratrix, which motion was not acted upon.

After hearing on December 15, 1947, the respondent judge rendered a decision denying
the probate of the will presented by the petitioner on the ground that the attesting
witnesses did not sign their respective names in the presence of the testator, from which
the petitioner has appealed, and the appeal is now pending.

On December 29, 1947, the respondents Maria and Pedro Roxas renewed their petition for
the appointment of Maria Roxas as special administratrix or special co-administratrix, and
on May 5, 1948, the respondent judge rendered his resolution appointing the petitioner
Natividad I. Vda. de Roxas as special administratrix only of all the conjugal properties of
the deceased, and Maria Roxas as special administratrix of all capital or properties
belonging exclusively to the deceased Pablo M. Roxas.

The present petition for certiorari has been filed with this Court against the last order or
resolution of the Court of First Instance of Bulacan based on the ground that the
respondent judge acted in excess of the court's jurisdiction in appointing two special
co-administratices of the estate of the deceased Pablo Roxas, one of the capital or
properties belonging exclusively to the deceased, and another of his conjugal properties
with his wife (now widow), the petitioner.

It is well settled that the statutory provisions as to the prior or preferred right of certain
persons to the appointment of administrator under section 1, Rule 81, as well as the
statutory provisions as to causes for removal of an executor or administrator under section
653 of Act No. 190, now section 2, Rule 83, do not apply to the selection or removal of
special administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and Ona, 53 Phil., 104, 106.)
As the law does not say who shall be appointed as special administrator and the
qualifications the appointee must have, the judge or court has discretion in the selection of
the person to be appointed, discretion which must be sound, that is, not whimsical or
contrary to reason, justice or equity.

There is nothing wrong in that the respondent judge, in exercising his discretion and
appointing the petitioner as special administratrix, had taken into consideration the
beneficial interest of the petitioner in the estate of the decedent and her being designated
in the will as executrix thereof. But the respondent's subsequent act of appointing her as
special administratrix only of the conjugal or community property, and Maria Roxas as
special administratrix of the capital or exclusive property of the decedent, does not seem
to be in conformity with logic or reason. The petitioner has or claims to have the same
beneficial interest after the decision of the court disapproving the will, which is now
pending on appeal, as she had prior to it, because the decision is not yet final and may be
reversed by the appellate court.

Besides, even if the will is not probated, the widow in the present case would have, under
the law, the right of usufruct over one-half of the exclusive property of the decedent,
besides her share in the conjugal partnership. The beneficial interest required as a
qualification for appointment as administrator of the estate of a decedent is the interest in
the whole estate and not only in some part thereof. The petitioner being entitled to
one-half in usufruct of all the exclusive properties of the decedent, she would have as
much if not more interest in administering the entire estate correctly, in order to reap the
benefit of a wise, speedy, economical administration of the state, and not suffer the
consequences of the waste, improvidence or mismanagement thereof. The good or bad
administration of the property may affect rather the fruits than the naked ownership of a
property.
However, for the decision of the question involved in this proceeding it is not necessary for
us to determine whether or not the respondent judge has acted with grave abuse of
discretion in rendering the resolution complained of for the reasons just stated, in view of
our conclusion that the respondent judge acted in excess of the court's jurisdiction in
appointing two separate special administratices of the estate of the decedent: one of the
conjugal or community property and another of the capital or exclusive property of the
deceased Pablo M. Roxas.

According to section 2, Rule 75, taken from section 685 of the former Code of Civil
Procedure, Act No. 190, as amended, "when the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse." That is the reason why, according to section 4, Rule 78, the "letters
testamentary, or letters of administration with the will annexed, shall extend to all the
estate of the testator in the Philippines," and section 6, Rule 79, provides for appointment
of one administrator in case of intestacy, except in certain cases in which two or more joint,
but not separate and independent, administrators may be appointed under section 3, Rule
82. Therefore the administrator appointed to administer and liquidate the exclusive
property of a deceased spouse shall also administer, liquidate and distribute the
community property, because the estate of a deceased spouse which is to be settled, that
is, administered, liquidated and distributed, consists not only of the exclusive properties of
the decedent, but also of one-half of the assets of the conjugal partnership, if any, which
may pertain to the deceased, as determined after the liquidation thereof in accordance
with the provisions of articles 1421 to 1424 of the Civil Code.

There is absolutely no reason for appointing two separate administrators, specially if the
estate to be settled is that of a deceased husband as in the present case, for according to
articles 1422 and 1423 of the Civil Code, only after the dowry and parapherna of the wife
and the debts, charges, and obligations of the conjugal partnership have been paid, the
capital or exclusive property of the husband may be liquidated and paid in so far as the
inventoried estate may reach; and if the estate inventoried should not be sufficient to pay
the dowry and the parapherna of the wife and the debts, charges and obligations of the
partnership, the provision of Title XVII of the Civil Code relating to concurrence and
preference of credits shall be observed. If two separate administrators are appointed as
done in the present case, in every action which one of them may institute to recover
properties or credit of the deceased, the defendant may raise the question or set up the
defense that the plaintiff has no cause of action, because the property or credit in issue
belongs to the class which is being administered by the other administrator, which can not
be done if the administrator of the entire estate is only one.

As under the law only one general administrator may be appointed to administer, liquidate
and distribute the estate of a deceased spouse, it clearly follows that only one special
administrator may be appointed to administer temporarily said estate, because a special
administrator is but a temporary administrator who is appointed to act in lieu of the general
administrator. "When there is delay in granting letters testamentary or of administration
occasioned by an appeal from the allowance or disallowance of will, or from any other
cause, the court may appoint a special administrator to collect and take charge of the
estate of the deceased until the questions causing the delay are decided and executors or
administrators thereupon appointed," (sec. 1, Rule 81). Although his powers and duties
are limited to "collect and take charge of the goods, chattels, rights, credits, and estate of
the deceased and preserve the same for the executor or administrator afterwards
appointed, and for that purpose may commence and maintain suits as administrator, and
may sell such perishable and other property as the court orders sold. A special
administrator shall not be liable to pay any debts of the deceased." (Section 2, Rule 81.) lawphil.net

In view of all the foregoing, we hold that the court below has no power to appoint two
special administratices of the estate of a deceased husband or wife, one of the community
property and another of the exclusive property of the decedent, and therefore the
respondent judge acted in excess of the court's jurisdiction in rendering or issuing the
order complained of, and therefore said order is hereby set aside, with costs against the
respondents. So ordered.

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner. Compared with roxas vs. pecson

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L.
Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special
Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina
Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the
probate of a document purporting to be the last will and testament of her aunt, Gabina
Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire
estate of the deceased — except the properties bequeathed to her other niece and
nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and
Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed therein
as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed
the probate of her alleged will, and, after appropriate proceedings, the court, presided
over by respondent Judge, issued an order, dated February 8, 1956, sustaining said
opposition and denying the petition for probate. Subsequently, Aurea Matias brought the
matter on appeal to this Court (G.R. No. L-10751), where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio
Rodriguez, as special administrator of the estate of the deceased, and the appointment, in
his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which
date the court postponed the hearing to February 27, 1956. Although notified of this order,
Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion
praying for additional time within which to answer the charges preferred against him by
Basilia Salud and for another postponement of said hearing. This motion was not granted,
and Basilia Salud introduced evidence in support of said charges, whereupon respondent
Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority
and gross negligence, and, accordingly, relieved him as special administrator of the estate
of the deceased and appointed Basilia Salud as special administratrix thereof, to "be
assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide,
interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud
shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside
and that she be appointed special co-administratrix, jointly with Horacio Rodriguez, upon
the ground that Basilia Salud is over eighty (80) years of age, totally blind and physically
incapacitated to perform the duties of said office, and that said movant is the universal
heiress of the deceased and the person appointed by the latter as executrix of her alleged
will. This motion was denied in an order dated March 10, 1956, which maintained "the
appointment of the three above named persons" — Basilia Salud, Ramon Plata and
Victorina Salud — "for the management of the estate of the late Gabina Raquel pending
final decision on the probate of the alleged will of said decedent." However, on March 17,
1956, Basilia Salud tendered her resignation as special administratrix by reason of
physical disability, due to old age, and recommended the appointment, in her place, of
Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea
Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24,
1956, she expressed her conformity to said resignation, but objected to the appointment,
in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea
Matias — she (Victorina Salud) having been the principal and most interested witness for
the opposition to the probate of the alleged will of the deceased — and proposed that the
administration of her estate be entrusted to the Philippine National Bank, the Monte de
Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by
law therefor, should the court be reluctant to appoint the movant as special administratrix
of said estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or which may be due, to the estate of the
deceased and to collect all the produce of her lands, which was granted on June 23, 1956.
On June 27, 1956, said respondents filed another motion praying for permission to sell the
palay of the deceased then deposited in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon
the ground that the same had been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the choice
of special administratrix of the estate of the decedent, she (petitioner) being the universal
heiress to said estate and, the executrix appointed in the alleged will of the deceased, that
until its final disallowance — which has not, as yet, taken place she has a special interest
in said estate, which must be protected by giving representation thereto in the
management of said estate; that, apart from denying her any such representation, the
management was given to persons partial to her main opponent, namely, Basilia Salud,
inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one
of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix
despite her obvious unfitness for said office, she being over eighty (80) years of age and
blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud
resigned as special administratrix upon such ground; that the Rules of Court do not permit
the appointment of more than one special administrator; that Horacio Rodriguez was
removed without giving petitioner a chance to be heard in connection therewith; and that
Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased
and the produce of her lands, as well to sell her palay, without previous notice to the
petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope
of his jurisdiction and without any abuse of discretion; that petitioner can not validly claim
any special interest in the estate of the deceased, because the probate of the alleged will
and testament of the latter — upon which petitioner relies — has been denied; that
Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina
Salud and Ramon Plata have not done anything that would warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of
respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal,
dated February 17, 1956, the record shows that petitioner herein received copy of said
motion of February 24, 1956, or the date after that set for the hearing thereof. Again, notice
of the order of respondent Judge, dated February 23, 1956, postponing said hearing to
February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate.
Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the latter's
principal witness, Victorina Salud, would be considered for the management of said. As a
consequence, said petitioner had no opportunity to object to the appointment of Basilia
Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and
the order of February 27, 1956, to this effect, denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia Salud.
Otherwise respondent Judge would not have directed that she "be assisted and advised
by her niece Victorina Salud," and that the latter "shall always act as aide, interpreter and
adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia
Salud, Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956,
respondent Judge maintained "the appointment of the three (3) above-named persons for
the management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between
Aurea Matias and Basilia Salud regarding the person to be appointed special
administrator of the estate of the deceased. The former proposed Horacio Rodriguez,
whereas the latter urged the appointment of Victorina Salud. By an order dated August 11,
1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in
favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the
latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City
of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor
of the City of Cavite, is a resident thereof. In other words, the order of resident thereof. In
other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate, amounted to a reversal of the
aforementioned order of Judge Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by
respondent Judge, the order to this effect is not, as yet, final and executory. It is pending
review on appeal taken by Aurea Matias. The probate of said alleged will being still within
realm of legal possibility, Aurea Matias has — as the universal heir and executrix
designated in said instrument — a special interest to protect during the pendency of said
appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a
widow, designated as executrix in the alleged will and testament of her deceased husband,
the probate of which had denied in an order pending appeal, "has . . . the same beneficial
interest after the decision of the court disapproving the will, which is now pending
appeal, because the decision is not yet final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the
deceased, namely, one, represented by the petitioner, and another, to which Basilia Salud
and Victorina Salud belong. Inasmuch as the lower court had deemed it best to appoint
more than one special administrator, justice and equity demands that both factions be
represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special
administrator may be appointed to administrator temporarily" the estate of the deceased,
must be considered in the light of the facts obtaining in said case. The lower court
appointed therein one special administrator for some properties forming part of said estate,
and a special administratrix for other properties thereof. Thus, there were two (2) separate
and independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point. Moreover,
there are authorities in support of the power of courts to appoint several special
co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re
Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court
should re-hear the matter of removal of Horacio Rodriguez and appointment of special
administrators, after due notice to all parties concerned, for action in conformity with the
views expressed herein, with costs against respondents Victorina Salud and Ramon Plata.
It is so ordered.

G.R. No. L-30289 March 26, 1929

SERAPIA DE GALA, petitioner-appellant,

vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.

Sumulong, Lavides & Hilado for petitioner-appellant.

Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.

OSTRAND, J.:

On November 23, 1920, Severina Gonzales executed a will in which Serapia de Gala, a
niece of Severina, was designated executrix. The testatrix died in November, 1926,
leaving no heirs by force of law, and on December 2, 1926, Serapia, through her counsel,
presented the will for probate. Apolinario Gonzales, a nephew of the deceased, filed an
opposition to the will on the ground that it had not been executed in conformity with the
provisions of section 618 of the Code of Civil Procedure. On April 2, 1927, Serapia de Gala
was appointed special administratrix of the estate of the deceased. She returned an
inventory of the estate on March 31, 1927, and made several demands upon Sinforoso
Ona, the surviving husband of the deceased, for the delivery to her of the property
inventoried and of which he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to deliver to
Serapia de Gala all the property left by the deceased. Instead of delivering the property as
ordered, Sinforoso filed a motion asking the appointment of Serapia de Gala as special
administratrix be cancelled and that he, Sinforoso, be appointed in her stead. The motion
was opposed by both Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928,
it was nevertheless granted, Serapia was removed, and Sinforoso was appointed special
administrator in her place, principally on the ground that he had possession of the
property in question and that his appointment would simplify the proceedings.

In the meantime and after various continuances and delays, the court below in an order
dated January 20, 1928, declared the will valid and admitted it to probate. All of the parties
appealed, Serapia de Gala from the order removing her from the office of special
administratrix, and Apolinario Gonzales and Sinforoso Ona from the order probating the
will.

Serapia's appeal requires but little discussion. The burden of the argument of her counsel
is that a special administrator cannot be removed except for one or more of the causes
stated in section 653 of the Code of Civil Procedure. But that section can only apply to
executors and regular administrators, and the office of a special administrator is quite
different from that of regular administrator. The appointment of a special administrator lies
entirely in the sound discretion of the court; the function of such an administrator is only to
collect and preserve the property of the deceased and to return an inventory thereof; he
cannot be sued by a creditor and cannot pay any debts of the deceased. The fact that no
appeal can be taken from the appointment of a special administrator indicates that both
his appointment and his removal are purely discretionary, and we cannot find that the
court below abused its discretion in the present case. In removing Serapia de Gala and
appointing the present possessor of the property pending the final determination of the
validity of the will, the court probably prevented useless litigation.

The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in question was
not executed in the form prescribed by section 618 of the Code of Civil Procedure as
amended by Act No. 2645. That section reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be written in the language or dialect
known by the testator and signed by him, or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of each other. The
testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin,
and said pages shall be numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used, upon which the will
is written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.

The principal points raised by the appeal are (1) that the person requested to sign the
name of the testatrix signed only the latter's name and not her own; (2) that the attestation
clause does not mention the placing of the thumb-mark of the testatrix in the will; and (3)
that the fact that the will had been signed in the presence of the witnesses was not stated
in the attestation clause but only in the last paragraph of the body of the will.

The first point can best be answered by quoting the language of this court in the case of
the Estate of Maria Salva, G. R. No. 26881:1

An examination of the will in question disclosed that it contains five pages. The name of
the old woman, Maria Salva, was written on the left hand margin of the first four pages and
at the end of the will. About in the center of her name she placed her thumb-mark. About
in the center of her name she placed her thumb-mark. The three witnesses likewise
signed on the left-hand margin and at the end of the will.

On these facts, the theory of the trial judge was that under the provisions of section 618 of
the Code of Civil Procedure, as amended by Act No. 2645, it was essential to the validity of
the will that the person writing the name of the maker of the will also sign. Under the law
prior to the amendment, it had been held by this court that where a testator is unable to
write and his name is signed by another at his request, in his presence and in that of the
subscribing witnesses thereto, it is unimportant, so far as the validity of the will is
concerned, whether the person who writes the name of the testator signs his own or not.
(Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the trial judge emphasizes
that the amendment introduced into the law the following sentence: 'The testator or the
person requested by him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on the left margin . . ..' This
requirement, it is said, was not lived up to in this instance.

There is, however, an entirely different view which can be taken of the situation. This is
that the testatrix placed her thumb-mark on the will in the proper places. When, therefore,
the law says that the will shall be 'signed' by the testator or testatrix, the law is fulfilled not
only by the customary written signature but by the testator or testatrix' thumb-mark. The
construction put upon the word 'signed' by most courts is the original meaning of a signum
or sign, rather than the derivative meaning of a sign manual or handwriting. A statute
requiring a will to be 'signed' is satisfied if the signature is made by the testator's mark. (28
R. C. L., pp. 116-117).

The opinion quoted is exactly in point. The testatrix thumb-mark appears in the center of
her name as written by Serapia de Gala on all of the pages of the will.

The second and third points raised by Sinforoso Ona and Apolinario Gonzales are
sufficiently refuted by quoting the last clause of the body of the will together with the
attestation clause, both of which are written in the Tagalog dialect. These clauses read as
follows:

Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang

naglalaman ng aking huling tagubilin, at sa hindi ko kaalamang lumagda
 ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de
Gala na isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko
ang titik ng kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa anim
(6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at sa
harap ko at ng tatlong saksing nagpapatutuo sa huli ngayon ika dalawang
po't tatlo ng Nobiembre ng 1920.

(Sgd.) SEVERINA GONZALES

Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na

dahon na pinirmahan sa harap namin ni Serapia de Gala sa kahilingan ni
Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim (6) na
dahon at isinaysay na ang kasulatang ito ay siyang huling habilin o
testamento ni Severina Gonzales, ay pinirmahan namin, bilang mga saksi
sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng tinurang
testadora, at ang bawat isa sa amin ay pumirma sa harap ng lahat at
bawat isa sa amin, ngayon ika dalawang po't tatlo ng noviembre ng taong
1920 ng taong 1920.

(Sgd.) ELEUTERIO NATIVIDAD

JUAN SUMULONG
FRANCISCO NATIVIDAD

The translation in English of the clauses quoted reads as follows:

In virtue of this will, consisting of six pages, that contains my last wish, and
because of the fact that I cannot sign my name, I request my niece
Serapia de Gala to write my name, and above this I placed my right
thumb-mark at the end of this will and to each of the six pages of this
document, and this was done at my direction and in the presence of three
attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheets and
was signed in our presence by Serapia de Gala at the request of Severina
Gonzales at the end and on the margins of each of the six (6) sheets and
was declared to contain the last will and testament of Severina Gonzales,
was signed by us as witnesses at the end and on the margins of each
sheet in the presence and at the request of said testatrix, and each of us
signed in the presence of all and each of us, this 23rd day of November of
the year 1920.
 (Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that the testatrix signed by
thumb-mark, but it does there appear that the signature was affixed in the presence of the
witnesses, and the form of the signature is sufficiently described and explained in the last
clause of the body of the will. It maybe conceded that the attestation clause is not
artistically drawn and that, standing alone, it does not quite meet the requirements of the
statute, but taken in connection with the last clause of the body of the will, it is fairly clear
and sufficiently carries out the legislative intent; it leaves no possible doubt as to the
authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzales that the fact that
the will had been signed in the presence of the witnesses was not stated in the attestation
clause is without merit; the fact is expressly stated in that clause.

In our opinion, the will is valid, and the orders appealed from are hereby affirmed without
costs. So ordered.

G.R. No. L-19159 September 29, 1964

GLICERIA C. LIWANAG, Special Administratrix of the Estate of Pio D.

Liwanag, petitioner,
vs.
HON. Luis B. REYES, Judge of the Court of First Instance of Manila and ROTEGAAN
FINANCING, INC.,respondents.

C. M. Baltazar & A. R. Narvasa for petitioner.

A. P. Abaya & A. A. Bautista for respondents.

REGALA, J.:

This is a petition for certiorari to annul the orders of the Court of First Instance of Manila
appointing a receiver and deferring action on the motion to dismiss in Civil Case No. 48154.
A preliminary injunction was issued upon the filing of this petition.

On July 14, 1960, the late Pio D. Liwanag executed in favor of the Rotegaan Financing,
Inc., a real estate mortgage on a parcel of residential land with the building and
improvements thereon, at M. H. del Pilar Street, Manila, to secure the payment of a loan in
the amount of one hundred and eighty thousand pesos (P180,000.00), Philippine Currency,
with interest at the rate of 12% per annum on said loan. It was stipulated in the mortgage
contract that the total amount of mortgage debt be fully paid a year thereafter, or on or
before July 14, 1961. Before the one year period expired, the mortgagor Pio D. Liwanag
died intestate.
As the total mortgage obligation of the deceased was not fully paid within the stipulated
period, the mortgagee Rotegaan Financing, Inc., on September 21, 1961, instituted in the
Court of First Instance of Manila, a complaint for foreclosure against the Estate of Pio D.
Liwanag and Gliceria Liwanag as administratrix of the estate. The action also prayed for
the appointment of a receiver.

The defendant Gliceria Liwanag filed a motion to dismiss the complaint for foreclosure, on
the theory that she may not be sued as special administratrix.

The said defendant also filed opposition to the prayer for the issuance of a writ of
receivership, on the theory that the property subject of the foreclosure proceeding's is
in custodia legis, since administration proceedings had already been instituted for the
settlement of the estate of the deceased.

In two separate orders, the writ of receivership was issued, despite opposition, and action
on the motion to dismiss was deferred "until after the trial of this case on the merits
because there is a possibility that the estate of the deceased may be in a position to pay
the amounts claimed by the plaintiff, in which case the latter may choose to file its claim
against the decedent in the office of the Clerk of Court, and waive the mortgage."

Motion for reconsideration filed by the defendant having been denied, the latter filed this
petition for certiorari, alleging abuse of discretion on the part of the lower court in issuing
the questioned orders. As prayed for, a writ of preliminary injunction was issued upon the
filing of the petition.

The case raises the following fundamental issues: first, the correctness of the action for
foreclosure against the special administratrix, and second, the propriety of the
appointment of a receiver.

Section 7 of Rule 86 of the New Rules of Court provides that a creditor holding a claim
against the deceased, secured by a mortgage or other collateral security, may pursue any
of these remedies: (1) abandon his security and prosecute his claim in the testate or
intestate proceeding and share in the general distribution of the assets of the estate; (2)
foreclose his mortgage or realize upon his security by an action in court, making the
executor or administrator a party defendant, and if there is a deficiency after the sale of
the mortgaged property, he may prove the same in the testate or intestate proceedings;
and (3) rely exclusively upon his mortgage and foreclose it any time within the ordinary
period of limitations, and if he relies exclusively upon the mortgage, he shall not be
admitted as creditor of the estate, and shall not share in the distribution of the assets.

Obviously, the herein respondent has chosen the second remedy, having filed his action
for foreclosure against the administratrix of the property.

Now the question arises as to whether the petitioner herein can be sued as special
administratrix. The Rules of Court do not expressly prohibit making the special
administratrix a defendant in a suit against the estate. Otherwise, creditors would find the
adverse effects of the statute of limitations running against them in cases where the
appointment of a regular administrator is delayed. So that if We are now to deny the
present action on this technical ground alone, and the appointment of a regular
administrator will be delayed, the very purpose for which the mortgage was constituted will
be defeated. 1awphîl.nèt

The next point to be considered is whether or not there was abuse of discretion on the part
of the lower court in the issuance of its order for the appointment of a receiver. This should
be answered in the negative. It is to be noted that the contract of mortgage between the
deceased and the Rotegaan Financing, Inc., provides:

... In case of judicial foreclosure, the Mortgagor hereby consents to the appointment of the
president of the mortgagee corporation or any of its officers as receiver, without any bond,
to take charge of the mortgaged property at once, and to hold possession of the same,
and the rents and profits derived from the mortgaged property, before the sale, less the
costs and expenses of the receivership, the expenses of collection and attorney's fees,
which shall be fifteen per cent (15%) of the total indebtedness then unpaid, exclusive of all
costs and fees allowed by law, shall be applied first to the payment of the interest and then
to the capital of the indebtedness secured hereby. (Emphasis supplied)

It was therefore, the will of the deceased himself that, in case of foreclosure, the property
be put into the hands of a receiver, and this provision should be respected by the
administratrix of the estate. The cases cited by petitioner in favor of the theory that
property in custodia legis can not be given to a receiver is not applicable, considering that
this is an action to enforce a superior lien on certain property of the estate and the
appointment of a receiver, which is a very convenient and feasible means of preserving
and administering the property, has been agreed upon by the contracting parties.

Wide latitude of discretion is usually given to the trial courts in the matter of receivership
and unless that discretion is exercised arbitrarily, We are not to interfere. (See Motoomull
v. Arieta, et al., G.R. No. L-15972, May 31, 1963.)

IN VIEW OF THE FOREGOING, the two orders complained of are affirmed. The petition
is hereby dismissed and the preliminary injunctive writ heretofore issued dissolved. With
costs against petitioner.

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

DORA PERKINS ANDERSON, petitioner-appellee,

vs.
IDONAH SLADE PERKINS, oppositor-appellant.

Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-appellee.

Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.
REYES, J.B.L., J.:

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

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

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

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

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

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

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

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

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

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

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

G.R. No. 160671 April 30, 2008

LUIS L. CO, petitioner,

vs.
HON. RICARDO R. ROSARIO, in his capacity as the Presiding Judge of the Regional
Trial Court, Branch 66, Makati City, ELIZABETH RACHEL CO, ASTRID MELODY
CO-LIM, GENEVIEVE CO-CHUN, CAROL CO, KEVIN CO, EDWARD CO and the
ESTATE OF LIM SEE TE, respondents.

DECISION

NACHURA, J.:

For the resolution of the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court questioning the October 28, 2003 Decision1 of the Court of Appeals (CA) in
CA-G.R. SP No. 72055.

The relevant facts and proceedings follow.

On March 4, 1998, the Regional Trial Court (RTC) OF Makati City, Branch 66, in Sp. Proc.
No. M-4615, appointed petitioner and Vicente O. Yu, Sr. as the special administrators of
the estate of the petitioner’s father, Co Bun Chun.2However, on motion of the other heirs,
the trial court set aside petitioner’s appointment as special co-administrator.3Petitioner
consequently, nominated his son, Alvin Milton Co (Alvin, for brevity), for appointment as
co-administrator of the estate.4 On August 31, 1998, the RTC appointed Alvin as special
co-administrator.5
Almost four years thereafter, the RTC, acting on a motion6 filed by one of the heirs, issued
its January 22, 2002 Order7 revoking and setting aside the appointment of Alvin. The trial
court reasoned that Alvin had become unsuitable to discharge the trust given to him as
special co-administrator because his capacity, ability or competence to perform the
functions of co-administrator had been beclouded by the filing of several criminal cases
against him, which, even if there was no conviction yet, had provided the heirs ample
reason to doubt his fitness to handle the subject estate with utmost fidelity, trust and
confidence.

Aggrieved, petitioner moved for the reconsideration of the said Order, but this was denied
in the RTC Order8 of May 14, 2002.

Subsequently, petitioner brought the matter to the CA on petition for certiorari under Rule
65. In the aforesaid challenged October 28, 2003 Decision,9 the appellate court affirmed
the revocation of the appointment and dismissed the petition. Thus, the instant petition for
review on certiorari under Rule 45.

The petition is bereft of merit.

We affirm the appellate court’s ruling that the trial court did not act with grave abuse of
discretion in revoking Alvin’s appointment as special co-administrator. Settled is the rule
that the selection or removal of special administrators is not governed by the rules
regarding the selection or removal of regular administrators. 10 Courts may appoint or
remove special administrators based on grounds other than those enumerated in the
Rules, at their discretion.11 As long as the said discretion is exercised without grave abuse,
higher courts will not interfere with it. 12 This, however, is no authority for the judge to
become partial, or to make his personal likes and dislikes prevail over, or his passions to
rule, his judgment. The exercise of such discretion must be based on reason, equity,
justice and legal principles.13

Thus, even if a special administrator had already been appointed, once the court finds the
appointee no longer entitled to its confidence, it is justified in withdrawing the appointment
and giving no valid effect thereto.14 The special administrator is an officer of the court who
is subject to its supervision and control and who is expected to work for the best interest of
the entire estate, especially with respect to its smooth administration and earliest
settlement. 15

In this case, we find that the trial court’s judgment on the issue of Alvin’s removal as
special co-administrator is grounded on reason, equity, justice and legal principle. It is not
characterized by patent and gross capriciousness, pure whim and abuse, arbitrariness or
despotism, as to be correctible by the writ of certiorari.16 In fact, the appellate court
correctly observed that:

In ruling to revoke the appointment of Alvin Milton Co, the lower court took into
consideration the fiduciary nature of the office of a special administrator which demands a
high degree of trust and confidence in the person to be appointed. The court a quo
observed that, burdened with the criminal charges of falsification of commercial
documents leveled against him (sic), and the corresponding profound duty to defend
himself in these proceedings, Alvin Milton Co’s ability and qualification to act as special
co-administrator of the estate of the decedent are beclouded, and the recall of his
appointment is only proper under the attendant circumstances. Such reasoning by the
court a quo finds basis in actual logic and probability. Without condemning the accused
man (sic) as guilty before he is found such by the appropriate tribunal, the court merely
declared that it is more consistent with the demands of justice and orderly processes that
the petitioner’s son, who is already bidden to defend himself against criminal charges for
falsification in other fora be relieved of his duties and functions as special administrator, to
avoid conflicts and possible abuse.

The Court finds no grave abuse of discretion attending such ruling, as it was reached
based on the court a quo’s own fair assessment of the circumstances attending the case
below, and the applicable laws.17

As a final note, the Court observes that this prolonged litigation on the simple issue of the
removal of a special co-administrator could have been avoided if the trial court promptly
appointed a regular administrator. We, therefore, direct the trial court to proceed with the
appointment of a regular administrator as soon as practicable.

WHEREFORE, the petition for review on certiorari is hereby DENIED. The October 28,
2003 Decision of the Court of Appeals in CA-G.R. SP No. 72055 is AFFIRMED.

G.R. No. L-11435 December 27, 1957

HON. MATEO L. ALCASID, as Judge of the Court of First Instance of Albay,

ANTONIO CONDA, as regular administrator of the estate of Jose V. Samson,
JOSEFINA N. SAMSON, GLENDA SAMSON, MANUEL SAMSON and FELIX
SAMSON, petitioners,
vs.
AMADO V. SAMSON, JESUS V. SAMSON, PURIFICACION SAMSON MORALES;
DOLORES SAMSON-ACAYAN and PAZ SAMSON-YOROBE, respondents.

Moises C. Kallos for petitioners.

Ramon C. Fernandez for respondents.

REYES, J.B.L., J.:

On October 18, 1954, herein respondents filed an application in the Court of First Instance
of Albay for the issuance of letters of administration in favor in one of them, Jesus V.
Samson, for the estate of the late Jose V. Samson. On the same date, Jesus V. Samson
was appointed special administrator of the estate.

The application was opposed by petitioners Josefina N. Samson, the widow of Jose V.
Samson and her three minor children Glenda N. Samson, Manuel N. Samson and Felix N.
Samson. They asked for the granting of letters of administration in favor of Josefina N.
Samson, in the place of Jesus V. Samson. After hearing that dragged for almost two years,
Judge Alcasid, on March 12, 1956, issued an order appointing Antonio Conda, Municipal
Treasurer of Libon, Albay, as regular administrator. In that order the special administrator
Jesus V. Samson was instructed at the same time, the "twenty (20) days from the receipt
of this order he shall turn over all the properties and funds of the estate in his possession
to the regular administrator as soon as the latter qualified." Antonio Conda put up the
bond fixed by the court and, on March 19,1956, letters of administration were issued in his
favor. On April 3, 1956, upon motion of the widow, the court issued an order requiring the
special administrator to "deliver the properties and funds of the estate now in his
possession to the regular administrator within three (3) days from receipt of this order"
(Annex B).

It also appears that on March 27, 1956, respondents filed an appeal from the order of the
court granting letters of administration in favor of Antonio Conda and their record on
appeal was approved on April 17, 1956. On April 20, 1956, they filed a motion seeking to
set aside the approval of the bond posted by Antonio Conda as well as the letters of
administration issued in his favor. This motion having been denied through an order
issued on May 9, 1956, respondents resorted to the appellate courts.

The Court of Appeals upon certiorari applied for by the special administrator and the heirs
siding with him, held that, on the authority of our decision in Cotia vs. Pecson, 1 49 Off.
Gaz., 4313, the order appointing Antonio Conda as regular administrator was stayed by
the appeal taken against it, and thereafter, Conda should not have been allowed to qualify
in the meantime, unless execution pending appeal should be ordered for special reasons
pursuant to Rule 39, section 2 of the Rules of Court; and that "should the special
administrator be found, after due process of law, unfit to continue", he "could be dismissed
and another appointed to look after the interests of the estate until the appeal filed against
Conda's appointment is finally disposed of". For these reasons, the Court of Appeals set
aside the appointment of Conda and annulled his bond.

Against this decision, the interested parties applied to this Court for a review. We
granted certiorari.
lawphi1.net

This Court has repeatedly decided that the appointment and removal of a special
administrator are interlocutory proceedings incidental to the main case, and lie in the
sound discretion of the court. (Roxas vs. Pecson, 2 46 Off. Gaz. 2058; Junquera vs.
Barromeo, 3 52 Off. Gaz., 7611; DeGala vs. Gonzales, 53 Phil. 106; Garcia vs. Flores, 101
Phil. 781, 54 Off. Gaz., 4049).

Thus, in Roxas vs. Pecson, supra, this Court ruled:

It is well settled that the statutory provisions as to the prior or preferred right of certain
persons to the appointment of administrator under section 1, Rule 81, as well as the
statutory provisions as to causes for removal of an executor or administrator under section
653 of Act No. 190, now section 2, Rule 83, do not apply to the selection or removal of
special administrator. (21 Am. Jur., 833; De Gala vs. Gonzales and Ona, 53 Phil., 104, 106).
As the law does not say who shall be appointed as special administrator and the
qualifications the appointee must have, the judge or court has discretion in the selection of
the person to be appointed, discretion which must be sound, that is, not whimsical or
contrary to reason, justice or equity.

It is well to mark that, in the present case, the special administrator was not actually
removed by the court, but that he was superseded by the regular administrator by
operation of law. Rule 81, section 3, of the Rules of Court specifically provides that—

When letters testamentary or of administration are granted on the estate of the deceased,
the power of the special administrator shall cease, and shall forthwith deliver to the
executor or administrator the goods, chattels, money and estate of the deceased in his
hands. lawphi1.net

No question of abuse of discretion can therefore arise on account of the order of April 8,
1956, requiring Jesus V. Samson to turn over the administration to the regular
administrator, such result being ordained by law. Upon the other hand, the conditions of
the estate justified the appointment and qualification of a regular administrator, because
the special administration had lasted nearly two years, and the prompt settlement of the
estate had been unduly delayed. The Albay court said in its order of March 12:

. . . It is also the sense of this Court that the appointment of any of their immediate
relations would not end the bitter conflict that has so far raged as can be seen from the
voluminous records of this case which have accumulated within a very short time. The
appointment of a disinterested person as regular administrator would be conducive to a
smooth and peaceful administration of the properties of the estate. At any rate, the
appointment of Jesus V. Samson as special administrator was but done in a state of
emergency.

These reasons were supplemented by the order of May 9, 1956:

It is certainly against the interests of justice and a frustration of the policy of those rules to
extend unduly the time within which estates should be administered and to keep thereby
the property from the possession and use of those who are entitled thereto. The view
advanced by counsel for the special administrator that the appointment of regular
administrator cannot be effective until after the appeal interposed by the special
administrator is finally determined by the appellate court is contrary to the spirit of the
policy of the Rules of court above referred to and would unduly delay the prompt
settlement of the estate of the deceased Jose V. Samson, specially considering that this
special proceeding was commenced as far back as October 18, 1954, or more than one
and one-half years ago, and that the notice of the creditors, as provided in section 1, Rule
87, of the Rules of Court, cannot be even issued until after letters of administration have
been granted by the court to the regular administrator. (Decision, Ct. App., p.4) .

Even assuming that the rule in Cotia vs. Pecson, 49 Off. Gaz., 4313 (tho it actually dealt
with the removal of a regular administrator) is applicable to the case at bar, in the sense
that the appointment of a new administrator should be made effective pending appeal only
if Rule 39, section 2 (execution pending appeal) is complied with, such compliance exists
in the present case, for the order of April 3, 1956 (issued upon motion of herein petitioners)
that required the special administrator to turn over the properties and funds of the estate
to the regular administrator, was in effect a special order for the carrying out of the regular
administration notwithstanding the of respondents that was not perfected until April 12,
1956; while the special reasons for immediately carrying the order into effect are given in
the order of March 12, as supplemented by that of May 9, 1956, heretofore quoted. We find
these reasons sufficient (cf. De Borja vs. Encarnacion, Phil., 239).

The fact that these reasons were not expressed in the very order of April 3, 1956, is not by
itself fatal or constitutive of abuse of discretion; for while Rule 39, section 2, prescribes that
execution pending appeal may issue for good reasons to be stated in a special order, this
Court has decided that the element that gives validity to an order of immediate execution
is the existence of good reasons, if they may be found distinctly somewhere in the record,
altho not expressly stated in the order of execution itself (Lusk vs. Stevens, 54 Phil. 154;
Guevarra vs. Court of First Instance of Laguna, 70 Phil. 48; People's Bank vs. San Jose,
96 Phil., 895, 51 Off. Gaz., [6] 2918; Moran, Comments on the Rules of Court [1957 ed.,] Vol.
I, p. 540).

All told, the case boils down to this: The removal of the special administrator is at the
court's sound discretion, and the orders of March 12, and May 9, 1956 show that there
were good reasons to terminate the special administration. This being so, the heirs can
not seek to prolong the tenure of the removed special administrator by appealing Conda's
appointment as regular administrator. It may be argued that during the appeal, the estate
should be under special administration; but it does not appear that Amadeo Samson and
his partisans have so asked the court nor have they proposed another administrator and
therefore, their complaint against the court's action is unmeritorious.

A minor procedural point must be noted. In special proceedings, the judge whose order is
under attack is merely a nominal party; wherefore, a judge in his capacity should not be
made to appear as a party seeking reversal of a decision that is unfavorable to the action
taken by him. A decent regard for the judicial hierarchy bars a judge from suing against
the adverse opinion of a higher court and counsel should realize the fact and not include
the Judge's name in ulterior proceedings.

We see no abuse of discretion in the orders of the Court of First Instance complained of.
The decision of the Court of Appeals is reversed and the original petition for certiorari filed
by the special administrator is ordered dismissed, and the writ denied, with costs against
the respondents in this Court, Jesus V. Samson at al. So ordered.

[G.R. No. L-9314. May 28, 1956.]

Testate Estate of Vito Borromeo, deceased: JOSE H. JUNQUERA, special

administrator, Petitioner-Appellant, v. CRISPIN BORROMEO and TEOFILO
BORROMEO, oppositors-appellees. FORTUNATO BORROMEO, TOMAS BORROMEO
and AMELIA BORROMEO, legatees.

Felixberto Leonardo for appellant.

Florencio L. Albino for Special Administrator Patricio Beltran.

Miguel Cuenco, Jose Cuenco Borromeo and Numeriano G. Eztonzo for appellees.

Sanchez, Borromeo, and Valenzona for Fortunato Borromeo.

Baizas & Diaz for Tomas Borromeo and Amelia Borromeo.

SYLLABUS
1. EXECUTOR AND ADMINISTRATOR; DUTY OF SPECIAL ADMINISTRATOR; PERIOD WITHIN
WHICH TO SUBMIT INVENTORY; FAILURE TO DO SO CAUSE OF REMOVAL. — While section 4,
Rule 82 of the Rules of Court does not fix any period within which a special administrator is
required to submit an inventory of the estate, it cannot be denied that such duty has to be
performed within a reasonable period, if not as soon as practicable, in order to preserve the
estate and protect the heirs of the deceased. Such is inferred from section 2 of Rule 81
wherein it is provided that a special administrator "shall collect and take charge of the goods,
chattels, rights, credits, and estate of the deceased and preserve the same for the executor
or administrator afterwards (to be) appointed." For only in that manner can the court satisfy
the real purpose for which the office of a special administrator is provided for. If such were
not the case the court would be opening the door to the commission of irregularities or other
mischiefs which may redound to the detriment of the estate and of the heirs entitled to its
distribution. It is for this reason that the law provides for his removal in case he fails to
perform "a duty expressly provided by these rules" or become insane, or otherwise incapable
or unsuitable to discharge the trust. (Section 2, Rule 83).

2. ID.; SPECIAL ADMINISTRATOR; APPOINTMENT AND REMOVAL AT DISCRETION OF COURT.

— The appointment and removal of a special administrator lies entirely in the sound
discretion of the court. The sufficiency of any ground for removal should thus be determined
by the court, whose sensibilities are, in the first place, affected by any act or omission on the
part of the administrator not conformable to or in disregard of the rules or the orders of the
court" (2 Moran, Comments on the Rules of Court, 1952 ed., pp. 405-406.)

DECISION

BAUTISTA ANGELO, J.:

On May 17, 1945, Vito Borromeo executed a testament naming therein Jose H. Junquera as
executor. On March 13, 1952, Vito Borromeo died in Parañaque, Rizal, and on April 21, 1952,
Junquera filed in the Court of First Instance of Cebu a petition for the probate of said will
praying that, during the pendency of its probate, he be appointed a special administrator of
the estate upon his filing of a bond in the amount to be fixed by the court. On June 14, 1952,
the court appointed Junquera as special administrator upon his filing a bond of P2,000 and
ordered that letters of administration be issued to him.

Crispin Borromeo and Teofilo Borromeo filed separately an opposition to the petition for the
probate of the will. On January 2, 1953, said oppositors filed a motion for the removal of
Junquera as special administrator on the ground that he failed to submit an inventory of the
estate as required by law as well as to deposit either in the bank or with the clerk of court all
the income of the estate and by his conduct he may be considered as having neglected his
duties as such administrator. On February 20, 1953, Junquera filed his opposition to the
motion explaining that the reason why he failed to file the inventory and report as required by
law is that all the papers or documents relative to the estate are in the possession of one
Tomas L. Borromeo, who was residing in Manila, and who owns one- half of the conjugal
properties of the deceased by virtue of a deed of donation executed by the latter in his favor
and who, together with the other heirs, claims possession of the other half of said properties
by virtue of an agreement entered into with the deceased. And if he was not able to submit
a report of the income of the estate, it was because he failed to collect its rentals due to the
opposition of Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo who are all
heirs instituted in the will subject of probate. But on the same date, February 20, 1953,
Junquera finally submitted an inventory of the estate and a report of the income as required
by law.

After due hearing, the court granted the motion removing Junquera as special administrator
and ordering the parties to submit a list of persons from whom the court may select for
appointment as the new special administrator. On appeal taken by Junquera, the Court of
Appeals certified the appeal to this Court on the ground that it comes within its jurisdiction
under section 17 (5) of Republic Act No. 296.

Section 4, Rule 82, of the Rules of Court provides: chanroblesvirtual 1awlibrary

"SEC. 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." chanrob1es virtual 1aw library

It appears from the above that a special administrator before entering upon his duties shall
give a bond 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." Has
Junquera complied with this duty?

It appears that he was appointed as special administrator on June 14, 1952 after filing a bond
in the amount of P2,000. He assumed office since then and yet until the motion for his removal
which was filed on January 2, 1953, or a period of approximately seven months, he appears
not to have taken any step to determine the property, real or personal, belonging to the
estate and much less has filed an inventory thereof with the court as required by law. While
the above- quoted rule (section 4, Rule 82) does not fix any period within which he is required
to submit an inventory of the estate, it cannot be denied that such duty has to be performed
within a reasonable period, if not as soon as practicable, in order to preserve the estate and
protect the heirs of the deceased. Such is inferred from section 2 of Rule 81 wherein it is
provided that a special administrator "shall collect and take charge of the goods, chattels,
rights, credits, and estate of the deceased and preserve the same for the executor or
administrator afterwards (to be) appointed" for only in that manner can we satisfy the real
purpose for which the office of a special administrator is provided for. If such were not the
case we would be opening the door to the commission of irregularities or other mischiefs
which may redound to the detriment of the estate and of the heirs entitled to its distribution.
It is for this reason that the law provides for his removal in case he fails to perform "a duty
expressly provided by these rules" or "becomes insane, or otherwise incapable or unsuitable
to discharge the trust (section 2, Rule 83). (Italics supplied.) And if, as found by the trial judge,
Junquera "have not even attempted, much less done any substantial performance of any of
(his) commitments", it is evident that he has proved to be unworthy of his trust.

His claim that he has not been able to submit earlier an inventory of the estate because the
papers and documents relative thereto were in the possession of one of the heirs who was in
Manila and claims to be the owner of one-half of the conjugal properties, is too flimsy to
justify the long delay he has incurred in the submission of the requisite inventory. Neither can
the opposition to his taking possession of the properties coming from some of the heirs of the
deceased justify his inaction for in such a predicament his duty is to inform the court of such
opposition in order that the latter may give whatever advice may be necessary to preserve
the estate and protect the interest of the heirs. But no such action was taken, and what is
more, there is an intimation that the special administrator has never been allowed by the
legatees of the will, who apparently are in actual possession of the estate, to take possession
thereof, nor to collect its rentals, for which reason the account submitted by him at the last
hour appears to be unsatisfactory. Even the inventory he submitted suffers from a substantial
deficiency for, as pointed out by the oppositors, many properties belonging to the deceased
have not been included therein.

It is true that Junquera is the one named by the testator as the executor of his will but such
designation cannot give him any preference or advantage until after the will is admitted to
probate. This claim can only be asserted after the will has been admitted to probate for such
is "a precious prerogative of a testator, a necessary concomitant of his right to dispose of his
property in the manner he wishes" (Ozaeta v. Pecson, 49 Off. Gaz., No. 7, 2805).

The rule is that "The appointment and removal of a special administrator lies entirely in the
sound discretion of the court,. . . The sufficiency of any ground for removal should thus be
determined by the court, whose sensibilities are, in the first place, affected by any act or
omission on the part of the administrator not conformable to or in disregard of the rules or the
orders of the court" (Moran, Comments on the Rules of Court, Vol. II, 1925 ed., pp. 405-406,
and cases cited therein). Considering the circumstances of this case, we find no plausible
reason to interfere with the action taken by the trial court in removing appellant as special
administrator.

Wherefore, the order appealed from is affirmed, without costs.