Santero vs.

CFI of Cavite, 153 SCRA 728 , September 14, 1987 Case Title : PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners, vs. HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO SANTERO, respondents.Case Nature : PETITION for certiorari to review the judgment of the Court of First Instance of Cavite, Br. V. Syllabi Class : Civil Law|Family Relations|Support Syllabi: 1. Civil Law; Family Relations; Support; Fact that private respondents are of age, gainfully employed, or married is not a determining factor of their right to allowance under Art 188 of the Civil Code; While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the Civil Code gives the surviving spouse and his or her children without distinction.The fact that private respondents are of age, gainfully employed, or married is of no moment and should not be regarded as the determining factor of their right to allowance under Art. 188. While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the New Civil Code gives the surviving spouse and his/her children without distinction. Hence, the private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are entitled to allowances as advances from their shares in the inheritance from their father Pablo Santero. 2. Civil Law; Family Relations; Support; Since the provision of the Civil Code, a substantive law, gives the surviving spouse and the children the right to receive support during the liquidation of the estate of the deceased, such right cannot be impaired by Sec. 3 of Rule 83 of the Rules of Court which is a procedural rule; "Spouse" interpreted to be the legitimate spouse, not common-law spouse.Since the provision of the Civil Code, a substantive law, gives the surviving spouse and to the children the right to receive support during the liquidation of the estate of the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with respect to "spouse," the same must be the "legitimate spouse" (not common-law spouses who are the mothers of the children here). 3. Civil Law; Family Relations; Support; Motion for allowance granted by court after hearing, as the motion contains a notice of hearing and was opposed by the petitioner's lawyer; In granting the motion for allowance, the court merely followed the precedent of the court which granted a similar motion the previous year.lt is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion was duly received by the lawyer, Atty.

Beltran as he filed an opposition thereto on the same date of hearing of the motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The respondent court in granting the motion for allowance merely "followed the precedent of the court which granted a similar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" {petitioners and private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several orders. (Annex 1 to Annex 4). Division: SECOND DIVISION Docket Number: Nos. L-61700-03 Ponente: PARAS Dispositive Portion: WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed judgment is AFFIRMED.

G.R. No. L-61700 September 14, 1987 PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners, vs. HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO SANTERO, respondents.

PARAS, J.: This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance filed by private respondents. Said order reads as follows: Acting on the Motion For Allowance dated June 30, 1982 filed by Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero, thru their guardian, Anselma Diaz, the Opposition thereto dated July 8, 1982 filed by the oppositors, the Reply to Opposition dated July 12, 1982 filed by movant Anselma Diaz and the Rejoinder dated July 26, 1982 filed by the oppositors, the Court was constrained to examine the Motion For Allowance filed by the herein movant last year wherein the ground cited was for support which included educational expenses, clothing

and medical necessities, which was granted and said minors were given an allowance prayed for in their motion. In the Motion For Allowance in question guardian-movant Anselma Diaz only followed the precedent of the Court which granted a similar motion last year to be spent for the school expenses of her wards. In their opposition the oppositors contend that the wards for whom allowance is sought are no longer schooling and have attained majority age so that they are no longer under guardianship. They likewise allege that the administrator does not have sufficient funds to cover the said allowance because whatever funds are in the hands of the administrator, they constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit property from which said administrator derives the only income of the intestate estate of Pablo Santero, et al. In the Reply filed by the guardian-movant, she admitted some of her children are of age and not enrolled for the first semester due to lack of funds but will be enrolled as soon as they are given the requested allowances. She cited Article 290 of the Civil Code providing that: Support is everything that is indispensable for substance, dwelling, clothing and medical attendance, according to the social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some trade or vocation, even beyond the age of majority.' citing also Section 3 of Rule 83 of the Rules of Court which provides: Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the Court, such allowance as provided by law.' From the foregoing discussion alone, the Court cannot deviate from its duty to give the allowance sought by the wards, the fact that they need further education which should have been provided to them if their deceased father were alive. On the allegation that the funds from which the allowance would be derived are trust funds, the Court, time and again had emphasized that the estate of the Santeros is quite big and the amount to be released for allowances is indeed insignificant and which can easily be replaced from its general fund if the socalled trust fund is adjudicated to the oppositors.

WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero are hereby granted an allowance of two thousand (P2,000.00) pesos each for tuition fees, clothing materials and subsistence out of any available funds in the hands of the administrator who is ordered to reimburse to them the said amount after this order shall have become final to enable the oppositors to file their appeal by certiorari if they so desire within the reglementary period. SO ORDERED. Bacoor, Cavite, July 28, 1982. ILDEFONSO M. BLEZA Executive Judge (pp. 35-36, Rollo) It appears from the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the children begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are four of the seven children begotten by the same Pablo Santero with Anselma Diaz. Both sets of children are the natural children of the late Pablo Santero since neither of their mothers, was married to their father Pablo. Pablo Santero in turn, who died on November 30, 1973 was the only legitimate son of Pascual Santero who died in 1970 and Simona Pamuti Vda. de Santero who died in 1976. Meanwhile before We could act on the instant petition private respondents filed another Motion for Allowance dated March 25, 1985 with the respondent court to include Juanita, Estelita and Pedrito all surnamed Santero as children of the late Pablo Santero with Anselma Diaz praying that an order be granted directing the administrator Reynaldo C. Evaristo, to deliver the sum of P6,000.00 to each of the seven (7) children of Anselma Diaz as their allowance from the estate of Pablo Santero. The respondent Court granted the motion of the private respondents but oppositors (petitioners herein) asked the court to reconsider said Order. On September 10, 1985, an Amended Order was issued by respondent Court directing Anselma Diaz to submit her clarification or explanation as to the additional three (3) children of Anselma Diaz included in the motion. In compliance therewith Anselma Diaz filed her "Clarification" stating among others that in her previous motions, only the last four minor children as represented by the mother, Anselma Diaz were included in the motion for support and her first three (3) children who were then of age should have been included since all her children have the right to receive allowance as advance payment of their shares in the inheritance of Pablo Santero under Art. 188, of the New Civil Code.

On October 15, 1985, petitioners herein filed their Motion to Admit Supplemental Petition opposing the inclusion of three (3) more heirs. We denied that "Motion for Extension of Time to file their Supplemental Petition" as per Our Resolution dated October 23, 1985. On November 11, 1985, another Order was issued by the respondent court directing the administrator of the estate to get back the allowance of the three additional recipients or children of Anselma Diaz apparently based on the oppositors' (petitioners herein) "Urgent Motion to Direct the Administrator to Withhold Disbursement of Allowance to the Movants." The issues now being raised in this present Petition are: 1. Whether or not respondent court acted with abuse of discretion amounting to lack of jurisdiction in granting the allowance to the respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each despite the fact that all of them are not minors and all are gainfully employed with the exception of Miguel. 2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based on the allegations of the said respondents that the abovenamed wards are still schooling and they are in actual need of money to defray their school expenses for 1982-83 when the truth is that they are no longer schooling. 3. Whether or not respondent Court acted with abuse of discretion in granting the motion for allowance without conducting a hearing thereon, to determine the truth of allegations of the private respondents. Petitioners argue that private respondents are not entitled to any allowance since they have already attained majority age, two are gainfully employed and one is married as provided for under Sec. 3 Rule 83, of the Rules of Court. Petitioners also allege that there was misrepresentation on the part of the guardian in asking for allowance for tuition fees, books and other school materials and other miscellaneous expenses for school term 1982-83 because these wards have already attained majority age so that they are no longer under guardianship. They further allege that the administrator of the estate of Pablo Santero does not have sufficient funds to cover said allowance because whatever funds are in the hands of the administrator constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit properties from where these funds now held by the administrator are derived. In this connection, the question of whether the private respondents are entitled to allowance or not concerns only the intestate estate of the late Pablo Santero and not the intestate estates of Pascual Santero and Simona Pamuti, parents of their late legitimate son Pablo Santero. The reason for this is Art. 992 of the New Civil Code which states that "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." The question of whether or not the petitioners and private respondents are entitled to inherit by right of representation from their grandparents more particularly from Simona Pamuti was settled by

Us in the related case of "Anselma Diaz, et al. vs. Felisa Pamuti-Jardin" (G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992, petitioners and private respondents are excluded from the intestate estate of Simona Pamuti Vda. de Santero. The present petition obviously lacks merit. The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but Arts. 290 and 188 of the Civil Code reading as follows: Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical attendance, according tothe social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. Art. 188. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. The fact that private respondents are of age, gainfully employed, or married is of no moment and should not be regarded as the determining factor of their right to allowance under Art. 188. While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the New Civil Code gives the surviving spouse and his/her children without distinction. Hence, the private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are entitled to allowances as advances from their shares in the inheritance from their father Pablo Santero. Since the provision of the Civil Code, a substantive law, gives the surviving spouse and to the children the right to receive support during the liquidation of the estate of the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with respect to "spouse," the same must be the "legitimate spouse" (not common-law spouses who are the mothers of the children here). It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion was duly received by the lawyer, Atty. Beltran as he filed an opposition thereto on the same date of hearing of the motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The respondent court in granting the motion for allowance merely "followed the precedent of the court which granted asimilar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" (petitioners and

private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several orders. (Annex 1 to Annex 4). WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed judgment is AFFIRMED. SO ORDERED. Yap (Chairman), Melencio-Herrera, and Sarmiento, JJ., concur. Padilla, J., took no part.

Sebial vs. Sebial, 64 SCRA 385 , June 27, 1975 Case Title : INTESTATE ESTATE OF THE DECEASED GELACIO SEBIAL. BENJAMINA SEBIAL, petitioner-appellee, vs. ROBERTA SEBIAL, JULIANO SEBIAL and HEIRS OF BALBINA SEBIAL, oppositorsappellants.Case Nature : APPEAL from an order of the Court of First Instance of Cebu. Ramolete. J. Syllabi Class : Special proceedings|Intestate succession Syllabi: 1. Special proceedings; Intestate succession; Probate court retains jurisdiction to approve inventory of assets of decedent even if presented after 3-month period prescribed in Section 1, Rule 83 of the Rules of Court.The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedents estate and retains that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the inventory may be a ground for his removal (Sec. 2. Rule 82, Rules of Court). 2. Special proceedings; To determine if summary settlement is called for, probate court should ascertain value of estate left by deceased by preponderance of evidence.While the verified petition for the issuance of letters of administration, it was alleged that the gross value of the decedents estate was not more than five thousand pesos, in the amended inventory the valuation was P17,000. Indeed, one of the lower courts omissions was its failure to ascertain by preponderance of evidence the actual value of the estate, if there was still an estate to be administered. The approval of the amended inventory was not such a determination. Anyway, in the present posture of the proceeding, no useful purpose would be served by dismissing the petition herein and ordering that a new petition for summary settlement be filed. 3. Special proceedings; Intestate courts approval of inventory of assets of deceased is not conclusive of what assets really belonged to the estate and is without prejudice to a judgment in an action on the title thereto.The lower courts order approving the amended inventory is not a conclusive determination of what assets constitutes the decedents estate and of the valuations thereof. Such a determination is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership.

4. Special proceedings; Probate court cannot pass upon question of title to property except where the parties are all heirs arid submit such question before the probate court.The general rule is that questions of title to property cannot be passed upon in a testate or intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property and, when so submitted, the probate court may definitely pass judgment thereon. (The lower court was held to have erred in ordering delivery to administratrix of certain properties claimed by oppositors as their own and properties already sold to third persons.) 5. Special proceedings; Probate court may take cognizance of properties under administration provided interest of third persons who may be cited to appear in court are not prejudiced.Lorenzo Rematado and Lazaro Recuelo are not heirs of the decedent. They are third persons. The rule is that matters affecting property under administration may be taken cognizance of by the probate court in the course of the intestate proceedings provided that the interests of third persons are not prejudiced. However, third persons to whom the decedents assets had been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they came into the possession of the decedents assets, but a separate action would be necessary to recover the said assets. 6. Special proceedings; Prescription among co-heirsGenerally, prescription does not run among co-heirs.Generally prescription does not run in favor of a coheir as long as he expressly or implied recognizes the coownership (Art. 494, Civil Code). But from the moment that a coheir claims absolute and exclusive ownership of the hereditary properties Division: SECOND DIVISION Docket Number: Counsel: C. de la Victoria & L. de la Victoria, Robustiano D. Dejaresco Ponente: AQUINO Dispositive Portion: WHEREFORE, (a) the probate courts order of December 11, 1961, granting the administratrixs motion of May 4, 1961 for the delivery to her of certain properties is set aside; (b) its other order of December 11, 1961 approving the amended inventory should not be considered as a final adjudication on

the ownership of the properties listed in the inventory and (c) this case is remanded to the lower court for further proceedings in accordance with the guidelines laid down in this decision. No costs.

G.R. No. L-23419 June 27, 1975 INTESTATE ESTATE OF THE DECEASED GELACIO SEBIAL. BENJAMINA SEBIAL, petitionerappellee, vs. ROBERTA SEBIAL, JULIANO SEBIAL and HEIRS OF BALBINA SEBIAL, oppositors-appellants. C. de la Victoria & L. de la Victoria for appellants. Robustiano D. Dejaresco for appellee.

AQUINO, J.: Gelacio Sebial died intestate in 1943 in Pinamungajan Cebu. According to the appellants, Gelacio Sebial, by his first wife Leoncia Manikis, who allegedly died in 1919, begot three children named Roberta, Balbina and Juliano. By his second wife, Dolores Enad, whom he allegedly married in 1927, he supposedly begot six children named Benjamina, Valentina, Ciriaco, Gregoria, Esperanza and Luciano. On June 17, 1960 Benjamina Sebial filed in the Court of First Instance of Cebu a verified petition for the settlement of Gelacio Sebial's estate. She prayed that she be appointed administratrix thereof (Spec. Proc. No. 2049-R). Roberta Sebial opposed the petition on the ground that the estate of Gelacio Sebial had already been partitioned among his children and that, if an administration proceeding was necessary, she, Roberta Sebial, a resident of Guimbawian, a remote mountain barrio of Pinamungajan, where the decedent's estate was supposedly located, should be the one appointed administratrix and not Benjamina Sebial, a housemaid working at Talisay, Cebu which is about seventy kilometers away from Pinamungajan. In a supplemental opposition the children of the first marriage contended that the remedy of Benjamina Sebial was an action to rescind the partition. After hearing, the lower court in its order of January 16, 1961 appointed Benjamina Sebial as administratrix. It found that the decedent left an estate consisting of lands with an area of twenty-one hectares, valued at more than six thousand pesos, and that the alleged partition of the decedent's estate was invalid and ineffective. Letters of administration were issued to Benjamina Sebial on January 19, 1961. On the same date, a notice to creditors was issued. The oppositors moved for the reconsideration of the order appointing Benjamina Sebial as administratrix. They insisted that the decedent's estate had been partitioned on August 29, 1945, as shown in Exhibits 5, 6, 7 and I, and that the action to rescind the partition had already prescribed. The lower court denied the motion in its order of February 11, 1961.

The oppositors filed on March 16, 1961 a motion to terminate the administration proceeding on the grounds that the decedent's estate was valued at less than six thousand pesos and that it had already been partitioned and, therefore, there was no necessity for the administration proceeding. On April 27, 1961 Benjamina Sebial filed an inventory and appraisal of the decedent's estate allegedly consisting of seven unregistered parcels of land, covered by Tax Declarations Nos. 04477, 04478, 04490, 04491, 04492, 04493 and 04500, with a total value of nine thousand pesos, all located at Barrio Guimbawian, Pinamungajan. The oppositors registered their opposition to the inventory on the ground that the seven parcels of land enumerated in the inventory no longer formed part of the decedent's estate. On May 6, 1961, the administratrix filed a motion to require Lorenzo Rematado, Demetrio Camillo and the spouses Roberta Sebial and Lazaro Recuelo to deliver to her the parcels of land covered by Tax Declarations Nos. 04478, 04490,04491 and 04493. On June 24, 1961 the probate court issued an order suspending action on the pending incidents in view of the possibility of an amicable settlement. It ordered the parties to prepare a complete list of the properties belonging to the decedent, with a segregation of the properties belonging to each marriage. Orders of the same tenor were issued by the lower court on July 8 and October 28, 1961. On November 11, 1961 the oppositors, Roberta Sebial, Juliano Sebial and the heirs of Balbina Sebial, submitted their own inventory of the conjugal assets of Gelacio Sebial and Leoncia Manikis, consisting of two parcels of land acquired in 1912 and 1915. They alleged that the conjugal estate of Gelacio Sebial and Dolores Enad consisted of only one parcel of land, containing an area of seven hectares, allegedly purchased with money coming from the conjugal assets of Gelacio Sebial and Leoncia Manikis. They further alleged that the said seven- hectare land was sold by the children of the second marriage to Eduardo Cortado (Tax Declaration No. 2591).
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The oppositors claimed that the aforementioned two parcels of land acquired during the first marriage were partitioned in 1945 among (1) Roberta Sebial, (2) Juliano Sebial, (3) Francisco Sebial as the representative of the estate of Balbina Sebial and (4) Valentina Sebial as the representative of the six children of the second marriage, some of whom were minors. They clarified that under that partition the three children of the first marriage received a three-fourths share while the six children of second marriage received a one-fourth share (Tax Declaration No. 06500). They also alleged that Eduardo Cortado, Emilio Sialongo, Lorenzo Rematado and Lazaro Recuelo were the third persons involved in the transfer of the lands pertaining to the estate of Gelacio Sebial (Tax Declarations Nos. 04493, 06571 and 04471). To the inventory submitted by the oppositors, the administratrix filed an opposition dated November 18, 1961. In an order dated November 11, 1961 the lower court inexplicably required the administratrix to submit another inventory. In compliance with that order she submitted an inventory dated November 17, 1961, wherein she reproduced her inventory dated April 17, 1961 and added two other items, namely, two houses allegedly valued at P8,000 and the fruits of the properties amounting to P5,000 allegedly received by the children of the first marriage. The oppositor interposed an opposition to the said inventory. On November 24, 1961 the oppositors filed a "motion for revision of partition" which was based on their own inventory dated November 7, 1961. The lower court in its order of December 11, 1961 approved the second inventory dated November, 7, 1961 because there was allegedly a "prima facie evidence to show that" the seven parcels of land and two houses listed therein belonged to the decedent's estate. In another order also dated

December 11, 1961 the lower court granted the motion of the administratrix dated May 4, 1961 for the delivery to her of certain parcels of land and it directed that the heirs of Gelacio Sebial, who are in possession of the parcels of land covered by Tax Declarations Nos. 04493, 04491, 04490 and 04478, should deliver those properties to the administratrix and should not disturb her in her possession and administration of the same. The lower court denied the oppositors' motion dated November 20, 1961 for "revision of partition". On December 29, 1961 Roberta Sebial moved for the reconsideration of the two orders on the grounds (1) that the court had no jurisdiction to approve an inventory filed beyond the three-month period fixed in section 1, Rule 84 of the Rules of Court; (2) that the said inventory is not supported by any documentary evidence because there is no tax declaration at all in Gelacio Sebial's name; (3) that the two houses mentioned in the inventory were nonexistent because they were demolished by the Japanese soldiers in 1943 and the materials thereof were appropriated by the administratrix and her brothers and sisters; (4) that the valuation of P17,000 indicated in the inventory was fake, fictitious and fantastic since the total value of the seven parcels of land amounted only to P3,080; (5) that Gelacio Sebial's estate should be settled summarily because of its small value as provided in section 2, Rule 74 of the Rules of Court and (6) that an ordinary action is necessary to recover the lands in the possession of third persons. The oppositors without awaiting the resolution of their motion for reconsideration filed a notice of appeal from the two orders both dated December 11, 1961. The notice of appeal was filed "without prejudice to the motion for reconsideration". Benjamina Sebial opposed the motion for reconsideration. The lower court in its order of January 18, 1962 denied oppositors' motion for reconsideration. It approved Roberta Sebial's amended record on appeal. The case was elevated to the Court of Appeals. The Court of Appeals in its resolution of July 31, 1964 in CA-G.R. No. 31978.-R certified the case to this Court because in its opinion the appeal involves only the legal issues of (1) the construction to be given to section 2, Rule 74 and section 1, Rule 84 (now Rule 83) of the Rules of Court and (2) whether an ordinary civil action for recovery of property and not an administration proceeding is the proper remedy, considering oppositors' allegation that the estate of Gelacio Sebial was partitioned in 1945 and that some of his heirs had already sold their respective shares (PerAngeles, Gatmaitan and Concepcion Jr., JJ.) The Clerk of Court of the lower court in his letter of January 15, 1963, transmitting the amended record on appeal, said "there was no presentation of evidence by either parties concerning the two orders appealed from". This case involves the conflicting claims of some humble folks from a remote rural area in Cebu regarding some unregistered farm lands. Because of her poverty Roberta Sebial wanted to appeal in forma pauperis. Her husband Lazaro Recuelo and her nephew, Candelario Carrillo, in order to justify the filing of a mimeographed brief, swore that their families subsisted on root crops because they could not afford to buy corn grit or rice. Oppositors' contention in their motion for reconsideration (not in their brief) that the probate court had no jurisdiction to approve the inventory dated November 17, 1961 because the administratrix filed it after three months from the date of her appointment is not well-taken. The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedent's estate and retains that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the threemonth period would not deprive the probate court of jurisdiction to approve it. However, an

administrator's unexplained delay in filing the inventory may be a ground for his removal (Sec. 2, Rule 82, Rules of Court). The other contention of the oppositors that inasmuch as the value of the decedent's estate is less than five thousand pesos and he had no debts, the estate could be settled summarily under section 2, Rule 74 of the Rules of Court or that an administration proceeding was not necessary (the limit of six thousand pesos was increased to ten thousand pesos in section 2, Rule 74 effective on January 1, 1964) rests on a controversial basis. While in the verified petition for the issuance of letters of administration, it was alleged that the gross value of the decedent's estate was "not more than five thousand pesos", in the amended inventory the valuation was P17,000. Indeed, one of the lower court's omissions was its failure to ascertain by preponderance of evidence the actual value of the estate, if there was still an estate to be administered. The approval of the amended inventory was not such a determination. Anyway, in the present posture of the proceeding, no useful purpose would be served by dismissing the petition herein and ordering that a new petition for summary settlement be filed. Inasmuch as a regular administrator had been appointed and a notice to creditors had been issued and no claims were filed, the probate court could still proceed summarily and expeditiously to terminate the proceeding. With the cooperation of the lawyers of the parties, it should strive to effect an amicable settlement of the case (See arts. 222 and 2029, Civil Code). If the efforts to arrive at an amicable settlement prove fruitless, then the probate court should ascertain what assets constituted the estate of Gelacio Sebial, what happened to those assets and whether the children of the second marriage (the petitioner was a child of the second marriage and the principal oppositor was a child of first marriage) could still have a share, howsoever small, in the decedent's estate. The lower court's order of December 11, 1961, approving the amended inventory of November 11, 1961, is not a conclusive determination of what assets constituted the decedent's estate and of the valuations thereof. Such a determination is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership (3 Moran's Comments on the Rules of Court, 1970 Ed., 448-449).
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The other order dated December 11, 1961 requires the delivery to the administratrix of (1) two parcels of land covered by Tax Declarations Nos. 04491 and 04493 in the possession of the spouses Lazaro Recuelo and Roberta Sebial, an oppositor-appellant; (2) the parcel of land covered by Tax Declaration No. 04490 in the possession of Lorenzo Rematado and (3) the parcel of land described under Tax Declaration No. 04478 in the possession of Demetrio Camillo (Canillo), a child of the deceased Balbina Sebial, one of the three children of the first marriage. We hold that the said order is erroneous and should be set aside because the probate court failed to receive evidence as to the ownership of the said parcels of land. The general rule is that questions of title to property cannot be passed upon in a testate or intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property and, when so submitted, the probate court may definitely pass judgment thereon (3 Moran's Comment's on the Rules of Court, 1970 Ed., pp. 448, 473; Alvarez vs. Espiritu, L18833, August 14, 1965, 14 SCRA 892). Lorenzo Rematado and Lazaro Recuelo are not heirs of the decedent. They are third persons. The rule is that matters affecting property under administration may be taken cognizance of by the probate court in the course of the intestate proceedings provided that the interests of third persons are not prejudiced (Cunanan vs. Amparo, 80 Phil. 227; Ibid, 3 Moran 473).

However, third persons to whom the decedent's assets had been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they came into the possession of the decedent's assets (Sec. 6, Rule 87, Rules of Court) but a separate action would be necessary to recover the said assets (Chanco vs. Madrilejos, 12 Phil. 543; Guanco vs. Philippine National Bank, 54 Phil. 244). The probate court should receive evidence on the discordant contentions of the parties as to the assets of decedent's estate, the valuations thereof and the rights of the transferees of some of the assets. The issue of prescription should also be considered (see p. 84, Record on Appeal). Generally prescription does not run in favor of a coheir as long as he expressly or impliedly recognizes the coownership (Art. 494, Civil Code). But from the moment that a coheir claims absolute and exclusive ownership of the hereditary properties and denies the others any share therein, the question involved is no longer one of partition but that of ownership (Bargayo vs. Camumot, 40 Phil. 857).
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At the hearing of the petition for letters of administration some evidence was already introduced on the assets constituting the estate of Gelacio Sebial. The petitioner testified and presented Exhibits A to J and X to Y-3. The oppositor also testified and presented Exhibits 2 to 10-A. The stenographic notes for the said hearing should be transcribed. In addition to that evidence. The probate court should require the parties to present further proofs on the ownership of the seven parcels of land and the materials of the two houses enumerated in the amended inventory of November 17, 1961, on the alleged partition effected in 1945 and on the allegations in oppositors' inventory dated November 7, 1961. After receiving evidence, the probate court should decide once and for all whether there are still any assets of the estate that can be partitioned and, if so, to effect the requisite partition and distribution. If the estate has no more assets and if a partition had really been made or the action to recover the lands transferred to third person had prescribed, it should dismiss the intestate proceeding. WHEREFORE, (a) the probate court's order of December 11, 1961, granting the administratrix's motion of May 4, 1961 for the delivery to her of certain properties is set aside; (b) its other order of December 11, 1961 approving the amended inventory should not be considered as a final adjudication on the ownership of the properties listed in the inventory and (c) this case is remanded to the lower court for further proceedings in accordance with the guidelines laid down in this decision. No costs. SO ORDERED. Fernando (Chairman), Antonio and Concepcion, Jr., JJ., concur.

. Sebial vs. Sebial, 64 SCRA 385 , June 27, 1975 Case Title : INTESTATE ESTATE OF THE DECEASED GELACIO SEBIAL. BENJAMINA SEBIAL, petitioner-appellee, vs. ROBERTA SEBIAL, JULIANO SEBIAL and HEIRS OF BALBINA SEBIAL, oppositorsappellants.Case Nature : APPEAL from an order of the Court of First Instance of Cebu. Ramolete. J. Syllabi Class : Special proceedings|Intestate succession Syllabi: 1. Special proceedings; Intestate succession; Probate court retains jurisdiction to approve inventory of assets of decedent even if presented after 3-month period prescribed in Section 1, Rule 83 of the Rules of Court.The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedents estate and retains that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the inventory may be a ground for his removal (Sec. 2. Rule 82, Rules of Court). 2. Special proceedings; To determine if summary settlement is called for, probate court should ascertain value of estate left by deceased by preponderance of evidence.While the verified petition for the issuance of letters of administration, it was alleged that the gross value of the decedents estate was not more than five thousand pesos, in the amended inventory the valuation was P17,000. Indeed, one of the lower courts omissions was its failure to ascertain by preponderance of evidence the actual value of the estate, if there was still an estate to be administered. The approval of the amended inventory was not such a determination. Anyway, in the present posture of the proceeding, no useful purpose would be served by dismissing the petition herein and ordering that a new petition for summary settlement be filed. 3. Special proceedings; Intestate courts approval of inventory of assets of deceased is not conclusive of what assets really belonged to the estate and is without prejudice to a judgment in an action on the title thereto.The lower courts order approving the amended inventory is not a conclusive determination of what assets constitutes the decedents estate and of the valuations thereof. Such a determination is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership.

4. Special proceedings; Probate court cannot pass upon question of title to property except where the parties are all heirs arid submit such question before the probate court.The general rule is that questions of title to property cannot be passed upon in a testate or intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property and, when so submitted, the probate court may definitely pass judgment thereon. (The lower court was held to have erred in ordering delivery to administratrix of certain properties claimed by oppositors as their own and properties already sold to third persons.) 5. Special proceedings; Probate court may take cognizance of properties under administration provided interest of third persons who may be cited to appear in court are not prejudiced.Lorenzo Rematado and Lazaro Recuelo are not heirs of the decedent. They are third persons. The rule is that matters affecting property under administration may be taken cognizance of by the probate court in the course of the intestate proceedings provided that the interests of third persons are not prejudiced. However, third persons to whom the decedents assets had been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they came into the possession of the decedents assets, but a separate action would be necessary to recover the said assets. 6. Special proceedings; Prescription among co-heirsGenerally, prescription does not run among co-heirs.Generally prescription does not run in favor of a coheir as long as he expressly or implied recognizes the coownership (Art. 494, Civil Code). But from the moment that a coheir claims absolute and exclusive ownership of the hereditary properties Division: SECOND DIVISION Docket Number: No.L-23419 Counsel: C. de la Victoria & L. de la Victoria, Robustiano D. Dejaresco

G.R. No. L-23419 June 27, 1975 INTESTATE ESTATE OF THE DECEASED GELACIO SEBIAL. BENJAMINA SEBIAL, petitionerappellee, vs. ROBERTA SEBIAL, JULIANO SEBIAL and HEIRS OF BALBINA SEBIAL, oppositors-appellants.

C. de la Victoria & L. de la Victoria for appellants. Robustiano D. Dejaresco for appellee.

AQUINO, J.: Gelacio Sebial died intestate in 1943 in Pinamungajan Cebu. According to the appellants, Gelacio Sebial, by his first wife Leoncia Manikis, who allegedly died in 1919, begot three children named Roberta, Balbina and Juliano. By his second wife, Dolores Enad, whom he allegedly married in 1927, he supposedly begot six children named Benjamina, Valentina, Ciriaco, Gregoria, Esperanza and Luciano. On June 17, 1960 Benjamina Sebial filed in the Court of First Instance of Cebu a verified petition for the settlement of Gelacio Sebial's estate. She prayed that she be appointed administratrix thereof (Spec. Proc. No. 2049-R). Roberta Sebial opposed the petition on the ground that the estate of Gelacio Sebial had already been partitioned among his children and that, if an administration proceeding was necessary, she, Roberta Sebial, a resident of Guimbawian, a remote mountain barrio of Pinamungajan, where the decedent's estate was supposedly located, should be the one appointed administratrix and not Benjamina Sebial, a housemaid working at Talisay, Cebu which is about seventy kilometers away from Pinamungajan. In a supplemental opposition the children of the first marriage contended that the remedy of Benjamina Sebial was an action to rescind the partition. After hearing, the lower court in its order of January 16, 1961 appointed Benjamina Sebial as administratrix. It found that the decedent left an estate consisting of lands with an area of twenty-one hectares, valued at more than six thousand pesos, and that the alleged partition of the decedent's estate was invalid and ineffective. Letters of administration were issued to Benjamina Sebial on January 19, 1961. On the same date, a notice to creditors was issued. The oppositors moved for the reconsideration of the order appointing Benjamina Sebial as administratrix. They insisted that the decedent's estate had been partitioned on August 29, 1945, as shown in Exhibits 5, 6, 7 and I, and that the action to rescind the partition had already prescribed. The lower court denied the motion in its order of February 11, 1961. The oppositors filed on March 16, 1961 a motion to terminate the administration proceeding on the grounds that the decedent's estate was valued at less than six thousand pesos and that it had already been partitioned and, therefore, there was no necessity for the administration proceeding. On April 27, 1961 Benjamina Sebial filed an inventory and appraisal of the decedent's estate allegedly consisting of seven unregistered parcels of land, covered by Tax Declarations Nos. 04477, 04478, 04490, 04491, 04492, 04493 and 04500, with a total value of nine thousand pesos, all located at Barrio Guimbawian, Pinamungajan. The oppositors registered their opposition to the inventory on the ground that the seven parcels of land enumerated in the inventory no longer formed part of the decedent's estate.

On May 6, 1961, the administratrix filed a motion to require Lorenzo Rematado, Demetrio Camillo and the spouses Roberta Sebial and Lazaro Recuelo to deliver to her the parcels of land covered by Tax Declarations Nos. 04478, 04490,04491 and 04493. On June 24, 1961 the probate court issued an order suspending action on the pending incidents in view of the possibility of an amicable settlement. It ordered the parties to prepare a complete list of the properties belonging to the decedent, with a segregation of the properties belonging to each marriage. Orders of the same tenor were issued by the lower court on July 8 and October 28, 1961. On November 11, 1961 the oppositors, Roberta Sebial, Juliano Sebial and the heirs of Balbina Sebial, submitted their own inventory of the conjugal assets of Gelacio Sebial and Leoncia Manikis, consisting of two parcels of land acquired in 1912 and 1915. They alleged that the conjugal estate of Gelacio Sebial and Dolores Enad consisted of only one parcel of land, containing an area of seven hectares, allegedly purchased with money coming from the conjugal assets of Gelacio Sebial and Leoncia Manikis. They further alleged that the said seven- hectare land was sold by the children of the second marriage to Eduardo Cortado (Tax Declaration No. 2591).
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The oppositors claimed that the aforementioned two parcels of land acquired during the first marriage were partitioned in 1945 among (1) Roberta Sebial, (2) Juliano Sebial, (3) Francisco Sebial as the representative of the estate of Balbina Sebial and (4) Valentina Sebial as the representative of the six children of the second marriage, some of whom were minors. They clarified that under that partition the three children of the first marriage received a three-fourths share while the six children of second marriage received a one-fourth share (Tax Declaration No. 06500). They also alleged that Eduardo Cortado, Emilio Sialongo, Lorenzo Rematado and Lazaro Recuelo were the third persons involved in the transfer of the lands pertaining to the estate of Gelacio Sebial (Tax Declarations Nos. 04493, 06571 and 04471). To the inventory submitted by the oppositors, the administratrix filed an opposition dated November 18, 1961. In an order dated November 11, 1961 the lower court inexplicably required the administratrix to submit another inventory. In compliance with that order she submitted an inventory dated November 17, 1961, wherein she reproduced her inventory dated April 17, 1961 and added two other items, namely, two houses allegedly valued at P8,000 and the fruits of the properties amounting to P5,000 allegedly received by the children of the first marriage. The oppositor interposed an opposition to the said inventory. On November 24, 1961 the oppositors filed a "motion for revision of partition" which was based on their own inventory dated November 7, 1961. The lower court in its order of December 11, 1961 approved the second inventory dated November, 7, 1961 because there was allegedly a "prima facie evidence to show that" the seven parcels of land and two houses listed therein belonged to the decedent's estate. In another order also dated December 11, 1961 the lower court granted the motion of the administratrix dated May 4, 1961 for the delivery to her of certain parcels of land and it directed that the heirs of Gelacio Sebial, who are in possession of the parcels of land covered by Tax Declarations Nos. 04493, 04491, 04490 and 04478, should deliver those properties to the administratrix and should not disturb her in her

possession and administration of the same. The lower court denied the oppositors' motion dated November 20, 1961 for "revision of partition". On December 29, 1961 Roberta Sebial moved for the reconsideration of the two orders on the grounds (1) that the court had no jurisdiction to approve an inventory filed beyond the three-month period fixed in section 1, Rule 84 of the Rules of Court; (2) that the said inventory is not supported by any documentary evidence because there is no tax declaration at all in Gelacio Sebial's name; (3) that the two houses mentioned in the inventory were nonexistent because they were demolished by the Japanese soldiers in 1943 and the materials thereof were appropriated by the administratrix and her brothers and sisters; (4) that the valuation of P17,000 indicated in the inventory was fake, fictitious and fantastic since the total value of the seven parcels of land amounted only to P3,080; (5) that Gelacio Sebial's estate should be settled summarily because of its small value as provided in section 2, Rule 74 of the Rules of Court and (6) that an ordinary action is necessary to recover the lands in the possession of third persons. The oppositors without awaiting the resolution of their motion for reconsideration filed a notice of appeal from the two orders both dated December 11, 1961. The notice of appeal was filed "without prejudice to the motion for reconsideration". Benjamina Sebial opposed the motion for reconsideration. The lower court in its order of January 18, 1962 denied oppositors' motion for reconsideration. It approved Roberta Sebial's amended record on appeal. The case was elevated to the Court of Appeals. The Court of Appeals in its resolution of July 31, 1964 in CA-G.R. No. 31978.-R certified the case to this Court because in its opinion the appeal involves only the legal issues of (1) the construction to be given to section 2, Rule 74 and section 1, Rule 84 (now Rule 83) of the Rules of Court and (2) whether an ordinary civil action for recovery of property and not an administration proceeding is the proper remedy, considering oppositors' allegation that the estate of Gelacio Sebial was partitioned in 1945 and that some of his heirs had already sold their respective shares (PerAngeles, Gatmaitan and Concepcion Jr., JJ.) The Clerk of Court of the lower court in his letter of January 15, 1963, transmitting the amended record on appeal, said "there was no presentation of evidence by either parties concerning the two orders appealed from". This case involves the conflicting claims of some humble folks from a remote rural area in Cebu regarding some unregistered farm lands. Because of her poverty Roberta Sebial wanted to appeal in forma pauperis. Her husband Lazaro Recuelo and her nephew, Candelario Carrillo, in order to justify the filing of a mimeographed brief, swore that their families subsisted on root crops because they could not afford to buy corn grit or rice. Oppositors' contention in their motion for reconsideration (not in their brief) that the probate court had no jurisdiction to approve the inventory dated November 17, 1961 because the administratrix filed it after three months from the date of her appointment is not well-taken. The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedent's estate and retains

that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the threemonth period would not deprive the probate court of jurisdiction to approve it. However, an administrator's unexplained delay in filing the inventory may be a ground for his removal (Sec. 2, Rule 82, Rules of Court). The other contention of the oppositors that inasmuch as the value of the decedent's estate is less than five thousand pesos and he had no debts, the estate could be settled summarily under section 2, Rule 74 of the Rules of Court or that an administration proceeding was not necessary (the limit of six thousand pesos was increased to ten thousand pesos in section 2, Rule 74 effective on January 1, 1964) rests on a controversial basis. While in the verified petition for the issuance of letters of administration, it was alleged that the gross value of the decedent's estate was "not more than five thousand pesos", in the amended inventory the valuation was P17,000. Indeed, one of the lower court's omissions was its failure to ascertain by preponderance of evidence the actual value of the estate, if there was still an estate to be administered. The approval of the amended inventory was not such a determination. Anyway, in the present posture of the proceeding, no useful purpose would be served by dismissing the petition herein and ordering that a new petition for summary settlement be filed. Inasmuch as a regular administrator had been appointed and a notice to creditors had been issued and no claims were filed, the probate court could still proceed summarily and expeditiously to terminate the proceeding. With the cooperation of the lawyers of the parties, it should strive to effect an amicable settlement of the case (See arts. 222 and 2029, Civil Code). If the efforts to arrive at an amicable settlement prove fruitless, then the probate court should ascertain what assets constituted the estate of Gelacio Sebial, what happened to those assets and whether the children of the second marriage (the petitioner was a child of the second marriage and the principal oppositor was a child of first marriage) could still have a share, howsoever small, in the decedent's estate. The lower court's order of December 11, 1961, approving the amended inventory of November 11, 1961, is not a conclusive determination of what assets constituted the decedent's estate and of the valuations thereof. Such a determination is only provisional in character and is without prejudice to a judgment in a separate action on the issue of title or ownership (3 Moran's Comments on the Rules of Court, 1970 Ed., 448-449).
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The other order dated December 11, 1961 requires the delivery to the administratrix of (1) two parcels of land covered by Tax Declarations Nos. 04491 and 04493 in the possession of the spouses Lazaro Recuelo and Roberta Sebial, an oppositor-appellant; (2) the parcel of land covered by Tax Declaration No. 04490 in the possession of Lorenzo Rematado and (3) the parcel of land described under Tax Declaration No. 04478 in the possession of Demetrio Camillo (Canillo), a child of the deceased Balbina Sebial, one of the three children of the first marriage. We hold that the said order is erroneous and should be set aside because the probate court failed to receive evidence as to the ownership of the said parcels of land. The general rule is that questions of title to property cannot be passed upon in a testate or intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the

question of title to property and, when so submitted, the probate court may definitely pass judgment thereon (3 Moran's Comment's on the Rules of Court, 1970 Ed., pp. 448, 473; Alvarez vs. Espiritu, L18833, August 14, 1965, 14 SCRA 892). Lorenzo Rematado and Lazaro Recuelo are not heirs of the decedent. They are third persons. The rule is that matters affecting property under administration may be taken cognizance of by the probate court in the course of the intestate proceedings provided that the interests of third persons are not prejudiced (Cunanan vs. Amparo, 80 Phil. 227; Ibid, 3 Moran 473). However, third persons to whom the decedent's assets had been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they came into the possession of the decedent's assets (Sec. 6, Rule 87, Rules of Court) but a separate action would be necessary to recover the said assets (Chanco vs. Madrilejos, 12 Phil. 543; Guanco vs. Philippine National Bank, 54 Phil. 244). The probate court should receive evidence on the discordant contentions of the parties as to the assets of decedent's estate, the valuations thereof and the rights of the transferees of some of the assets. The issue of prescription should also be considered (see p. 84, Record on Appeal). Generally prescription does not run in favor of a coheir as long as he expressly or impliedly recognizes the coownership (Art. 494, Civil Code). But from the moment that a coheir claims absolute and exclusive ownership of the hereditary properties and denies the others any share therein, the question involved is no longer one of partition but that of ownership (Bargayo vs. Camumot, 40 Phil. 857).
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At the hearing of the petition for letters of administration some evidence was already introduced on the assets constituting the estate of Gelacio Sebial. The petitioner testified and presented Exhibits A to J and X to Y-3. The oppositor also testified and presented Exhibits 2 to 10-A. The stenographic notes for the said hearing should be transcribed. In addition to that evidence. The probate court should require the parties to present further proofs on the ownership of the seven parcels of land and the materials of the two houses enumerated in the amended inventory of November 17, 1961, on the alleged partition effected in 1945 and on the allegations in oppositors' inventory dated November 7, 1961. After receiving evidence, the probate court should decide once and for all whether there are still any assets of the estate that can be partitioned and, if so, to effect the requisite partition and distribution. If the estate has no more assets and if a partition had really been made or the action to recover the lands transferred to third person had prescribed, it should dismiss the intestate proceeding. WHEREFORE, (a) the probate court's order of December 11, 1961, granting the administratrix's motion of May 4, 1961 for the delivery to her of certain properties is set aside; (b) its other order of December 11, 1961 approving the amended inventory should not be considered as a final adjudication on the ownership of the properties listed in the inventory and (c) this case is remanded to the lower court for further proceedings in accordance with the guidelines laid down in this decision. No costs. SO ORDERED.

Advincula vs. Teodoro, Sr. etc. and Lacson, 99 Phil. 413 , May 31, 1956 Case Title : EMILIO ADVINCULA, petitibner vs. HONORABLE JUDGE JOSE TEODORO, SR., Judge of the Court of First Instance of Negros Occidental, and ENRIQUE A. LACSON, respondents.Case Nature : ORIGINAL ACTION in the Supreme Court. Certiorari with preliminary injunction. Syllabi Class : EXECUTOR AND ADMINISTRATOR|APPOINTMENT OF ADMINISTRATOR Syllabi: 1. EXECUTOR AND ADMINISTRATOR; EXECUTOR NAMED IN THE WlLL WHEN MAY HE BE APPOINTED ADMINISTRATOR.The provision of section 4 of Rule 70 of the Kules of Court which provides that "when a will has been proved and allowed, the Court shall issue letters testamentary thereoft to the person named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these rules, cannot be enforced, until after said document has been allowed to probate. 2. EXECUTOR AND ADMINISTRATOR; DISCOVERY OF WILL AFTER APPOINTMENT OF ADMINISTRATOR EFFECT OF.The discovery of a doeument purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof until the alleged will has been proved and allowed by the court." (Rule 83, section 1 of the Rules of Court.) 3. EXECUTOR AND ADMINISTRATOR; APPOINTMENT OF ADMINISTRATOR; SURVIVING SPOUSE NOT STRANGER TO THE ESTATE OF THE DECEASED.It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be competent, capable, and fit to administer his estate in much the same as a member of her immediate family could be incompetent, incapable and unfit to do so. At any rate A is not a stranger either to her or to her estate, he being her surviving spouse and as such, one of her forced heirs, (Arts. 887, 888, 892, 893, 894, 897 to 900 and 995 to 1001, Civil Code of the Philippines), whether she died testate or intestate. What is more he is prima facie entitled to one-half of all property subject to the authority of the administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for "all property of the marriage is presumed to belong to the conjugal partnership"of which he is its administrator (Article 165, Civil Code of the Philippines)"unless it be proved that it pertains exclusively to the husband or to the wife" (See Arts. 160 and 185, Civil Code of the Philippines.)

Docket Number: No. L-9282 Counsel: Jose Y. Torres, G. D. Demaisip, C. A. Dabalits Ponente: CONCEPCION Dispositive Portion: Wherefore, the aforementioned orders of respondent Judge, dated May 8 and 30, 1955, are reversed, ajid the writ of preliminary injunction issued in this case hereby made permanent, with costs against respondent Enrique A. Lacson. It is so ordered.

MILIO ADVINCULA, Petitioner, vs. HONORABLE JUDGE JOSE TEODORO, SR., Judge of the Court of First Instance of Negros Occidental, and ENRIQUE A. LACSON, Respondents.

DECISION CONCEPCION, J.: Petitioner Emilio Advincula seeks a writ of certiorari, to annul certain orders of the Court of First Instance of Negros Occidental. Said Petitioner was, on November 22, 1954, appointed, special administrator of the estate of his deceased wife, Josefa Lacson Advincula, in special proceeding No. 3245 of said court. In due course, he was, on February 12, 1955, appointed regular administrator of said estate. After Advincula had qualified as such, the brothers of the deceased, who left no issue, submitted to the court, for allowance, a document purporting to be her last will and testament. Petitioner opposed the probate thereof upon the ground that it did not bear the signature of the deceased; that the signature thereon, if hers, was secured through fraud and duress; and that, the instrument had not been executed with the requisite formalities. On May 4, 1955, Respondent Enrique Lacson, one of the brothers of the deceased, filed a motion praying that he be appointed administrator of said estate, in lieu of Petitionerherein, for the reason that said Respondent is the executor named in the aforementioned alleged will. On or about May 16, 1955, Attys. Jose Y. Torres and Antonio Lozada, as counsel for Advincula, filed an opposition to said motion. When the latter was called for hearing on May 18, 1955, Atty. Lozada was served, in open court, copy of an amended motion, ofRespondent Lacson, for change of administrator, dated May 14, 1955. It was alleged therein, in addition to the ground set forth in the first motion:
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5. That the present administrator is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate, and without changing or removing him as such would be disastrous to the estate and to the heirs named in the will of the decedent. Atty. Lozada asked a postponement of the hearing upon the ground that Advinculas main counsel, Atty. Torres, was in Manila, but his request was denied. Then, after hearing the argument of opposing counsel, the court, presided over by Respondent, Honorable Jose Teodoro, Sr., Judge, issued, on the same date (May 18, 1955), an order the pertinent parts of which read:
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The Court, after hearing the oral arguments of both parties, finds the motion for postponement not well-taken and hereby denies the same; and finding the motion dated May 4, 1955 as amended by the amended motion dated May 14, 1955, well-founded and the opposition thereto dated May 16, 1955 not well-founded, said motion is hereby granted.
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WHEREFORE, in the interest of justice and for the preservation of the property for the heirs, the appointment of Emilio Advincula as administrator is hereby revoked and in his stead, theOppositor, Enrique A. Lacson, is hereby appointed administrator of this intestate estate, and same may qualify by filing a bond in the sum of P5,000 and taking and subscribing the corresponding oath of Office. Once said Enrique A. Lacson has qualified, let letters of administration issue in his favor. The former administrator, Emilio Advincula, is hereby ordered to submit within ten (10) days from receipt hereof, his final account covering the entire period of his administration and should it appear that any deficiency has been incurred by him during his incumbency, his bond shall answer for said deficiency. Thereupon, Lacson gave the requisite bond, letters of administration was issued to him, and he tried to take possession of the estate of the deceased. A reconsideration of said order of May 18, 1955, having been denied by another order, dated May 30, 1955, Petitioner instituted the present action for certiorari, against Lacson and Judge Teodoro, to annul his aforesaid orders of May 18 and 30, 1955, upon the ground that the same were issued with grave abuse of discretion. Upon the filing of a bond by Advincula, we issued, as prayed for in his petition, a writ of preliminary injunction restraining Respondent Lacson and his agents from interfering, molesting and harassing the Petitioner in the administration of the estate of the deceased, during the pendency of this case. The writ of certiorari prayed for is in order. Lacsons appointment, in lieu of Advincula, as administrator of the estate of Josefa Lacson Advincula, is predicated upon the fact that the former is named executor in the alleged will of said deceased. The provision therein to this effect cannot be enforced, however, until after said document has been allowed to probate, for section 4 of Rule 79 of the Rules of Court provides:
chanroblesvirtuallawlibrary

When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these rules. (Italics supplied.) Besides, the discovery of a document purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been proved and allowed by the court. Rule 83, section 1, of the Rules of Court, is plain and explicit on this point. If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, end render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. (Italics supplied.) The amended motion for change of administrator endeavored to justify the removal of Advincula by alleging that he is incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate of the deceased. By holding, in its order of May 18, 1955, that said motion is well founded with nothing, absolutely nothing else, to indicate the basis of this conclusion

Respondent Judge has impliedly adopted the line of argument followed in the above quoted allegation of the amended motion to change administrator. Said argument is, however, devoid of merit. It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be competent, capable and fit to administer her estate, in much the same as a member of her immediate family could be incompetent, incapable and unfit to do so. At any rate, Advincula is not a stranger, either to her or to her estate, he bring her surviving spouse and, as such, one of her forced heirs (Arts. 887, 888, 892, 893, 894, 897 to 900, and 995 to 1001, Civil Code of the Philippines), whether she died testate or intestate. What is more, he is prima facie entitled to one-half of all property subject to the authority of the administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for all property of the marriage is presumed to belong to the conjugal partnership of which he is its administrator (Article 165, Civil Code of the Philippines) unless it be proved that it pertains exclusively to the husband or to the wife (See Articles 160 and 185, Civil Code of the Philippines). Lastly, Advincula has not been found guilty of any specific act or omission constituting one of the legal grounds, enumerated in Rule 83, section 2, of the Rules of Court, for the removal of an executor or administrator. Hence, it is clear that Respondent Judge exceeded his jurisdiction in removing Advincula and appointing Lacson as administrator of the estate of the deceased Josefa Lacson Advincula. Wherefore, the aforementioned orders of Respondent Judge, dated May 8 and 30, 1955, are reversed, and the writ of preliminary injunction issued in this case hereby made permanent, with costs against Respondent Enrique A. Lacson. It is SO ORDERED. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, Reyes, J.B.L., and Endencia, JJ., concur.