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Settlement of Estate of Deceased PersonsRule 73 Venue and Process

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G.R. No. L-8409 December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIOEUSEBIO, petitioner-appellee,vs.AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, andCARLOS EUSEBIO,oppositors-appellants.

Francisco M. Ramos and Valeriano Silva for appellee.Filemon Cajator for appellants.

CONCEPCION, J.:

This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court ofFirst Instance of Rizal, a petition for his appointment as administrator of the estate of his

father, Andres Eusebio, who died on November 28, 1952, residing, according to saidpetition, in the City of Quezon. On December 4, 1953, Amanda, Virginia, Juan, Delfin,Vicente and Carlos, all surnamed Eusebio, objected to said petition, stating that they areillegitimate children of the deceased and that the latter was domiciled in San Fernando,Pampanga, and praying, therefore, that the case be dismissed upon the ground that venuehad been improperly filed. By an order, dated March 10, 1954, said court overruled thisobjection and granted said petition. Hence, the case is before us on appeal taken, fromsaid order, by Amanda Eusebio, and her aforementioned sister and brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952,for Rule 75, section 1, of the Rules of Court, provides:

Where estate of deceased persons settled. If the decedent is an inhabitant ofthe Philippines at the time of his death, whether a citizens or an alien, his will

shall be proved, or letters of administration granted, and his estate, in the Courtof First Instance in the province in which he resides at the time of his death, andif he is an inhabitant of a foreign country, the Court of First Instance of anyprovince in which he had estate. The court first taking cognizance of thesettlement of the estate of a decedent, shall exercise jurisdiction to the exclusionof all other courts. The jurisdiction assumed by a court, so far as it depends onthe place of residence of the decedent, or of the location of his estate, shall notbe contested in a suit or proceeding, except in an appeal from that court, in theoriginal case, or when the want of jurisdiction appears on the record.

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and hadalways been, domiciled in San Fernando, Pampanga, where he had his home, as well assome other properties. Inasmuch as his heart was in bad condition and his son, Dr. Jesus

Eusebio, who treated him, resided at No. 41 P. Florentino St., Quezon City, on October 29,1952, Andres Eusebio bought a house and lot at 889-A Espaa Extention, in said City(Exhibit 2). While transferring his belongings to this house, soon thereafter, the decedentsuffered a stroke (probably heart failure), for which reason Dr. Eusebio took him to his (Dr.Eusebio's) aforementioned residence, where the decedent remained until he was broughtto the UST Hospital, in the City of Manila, sometimes before November 26, 1952. On thisdate, he contracted marriage in articulo mortis with his common law wife, Concepcion

Villanueva, in said hospital. Two (2) days later, he died therein of "acute left ventricularfailure secondary to hypertensive heart disease", at the age of seventy-four (74) years(Exhibit A). Consequently, he never stayed or even slept in said house at EspaaExtention.

It being apparent from the foregoing that the domicile of origin of the decedent was SanFernando, Pampanga, where he resided for over seventy (70) years, the presumption isthat he retained such domicile, and, hence, residence, in the absence of satisfactory proofto the contrary, for it is well-settled that "a domicile once acquired is retained until a newdomicile is gained" (Minor, Conflict of Laws, p.70; Restatement of the Law on Conflict ofLaws, p. 47; In re Estate of Johnson, 192 Iowa, 78). Under the circumstances surroundingthe case at bar, if Andres Eusebio established another domicile, it must have been one ofchoice, for which the following conditions are essential, namely: (1) capacity to choose andfreedom of choice; (2) physical presence at the place chosen; and (3) intention to stay

therein permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of Laws, p.169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz.Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of choosing adomicile and had been in Quezon City several days prior to his demise. Thus, the issuenarrows down to whether he intended to stay in that place permanently.

There is no direct evidence of such intent. Neither does the decedent appears to havemanifested his wish to live indefinitely in said city. His son, petitioner-appellee, who took thewitness stand, did not testify thereon, despite the allegation, in his answer to theaforemention, opposition of the appellants herein, that "the deceased (had) decided toreside . . . for the rest of his life, in Quezon City". Moreover, said appellee did not introducethe testimony of his legitimate full brother and son of the decedent, Dr. Jesus Eusebio,upon whose advice, presumably, the house and lot at No. 889-A Espaa Extention waspurchased, and who, therefore, might have cast some light on his (decedent's) purpose inbuying said property. This notwithstanding, the lower court held that the decedent's intent

to stay permanently in Quezon City is "manifest" from the acquisition of said property andthe transfer of his belonging thereto. This conclusion is untenable. lawphil.net

The aforementioned house and lot were bought by the decedent because he had beenadviced to do so "due to his illness", in the very words of herein appellee. It is notimprobable in fact, its is very likely that said advice was given and followed in orderthat the patient could be near his doctor and have a more effective treatment. It is wellsettled that "domicile is not commonly changed by presence in a place merely for one'sown health", even if coupled with "knowledge that one will never again be able, on accountof illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-173; see, also,Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291 Fed. 129).Again,the decedent did not part with, or alienate, his house in San Fernando, Pampanga.Moreover, some of his children, who used to live with him in San Fernando, Pampanga,

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remained in that municipality. Then, again, in the deed Exhibit 2, by virtue of which saidproperty at No. 889-A Espaa Extention, Quezon City, was conveyed to him, on October29, 1952, orless than a month before his death, the decedent gave San Fernando,Pampanga, as his residence. Similarly, the "A" and "B" residence certificates used by thedecedent in aknowledging said Exhibit 2, before a notary public, was issued in SanFernando, Pampanga. Lastly, the marriage contract Exhibit 1, signed by the deceasedwhen he was married, in articulo mortis, to Concepcion Villanueva, at the UST Hospital, on

November 26, 1952, or two (2) days prior to his demise, stated that his residence is SanFernando, Pampanga. It is worthy of notice that Alfonso Eusebio, one of the legitimate fullbrothers of the herein appellee, was a witness to said wedding, thus indicating that thechildren of the deceased by his first marriage, including said appellee, were represented onthat occasion and would have objected to said statement about his residence, if it werefalse. Consequently, apart from appellee's failure to prove satisfactory that the decedenthad decided to establish his home in Quezon City, the acts of the latter, shortly andimmediately before his death, prove the contrary. At any rate, the presumption in favor ofthe retention of the old domicile 1 which is particularly strong when the domicile is one ofthe origin 2as San Fernando, Pampanga, evidently was, as regards said decedent hasnot been offset by the evidence of record.

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence,and refused to entertain the same in the order appealed from. The reason therefor are

deducible from its resolution in rejecting said documents during the hearing of the incidentat bar. The court then held:

Exihibits "1" and "2" are rejecting but the same may be attached to the recordsfor whatever action oppositors may want to take later on because until now thepersonality of the oppositors has not been established whether or not they havea right to intervene in this case, and the Court cannot pass upon this question asthe oppositors refuse to submit to the jurisdiction of this Court and they maintainthat these proceedings should be dismissed. (P. 10, t. s. n.)

In short, the lower court believed that said documents should not be admitted in evidencebefore appellants had established their "personality" to intervene in the case, referringseemingly to their filiation. When appellants, however, sought, during said hearing, toestablish their relation with the deceased, as his alleged illegitimate children, His Honor, the

trial Judge sustained appellee's objection thereto stating:

Your stand until now is to question the jurisdiction of this Court, and it seems thatyou are now trying to prove the status of your client; you are leading so that. Themain point here is your contention that the deceased was never a resident ofQuezon City and that is why I a llowed you to cross-examine. If you are trying toestablish the status of the oppositors, I will sustain the objection, unless you wantto submit to the jurisdiction of the Court. This is not yet the time to declare whoare persons who should inherit. (p. 1, t. s. n.)

Thus, the lower court refused to consider appellant's evidence on the domicile of thedecedent, because of their alleged lack of "personality", but, when tried to establish such"personality", they were barred from doing so on account of the question of venue raised by

him. We find ourselves unable to sanction either the foregoing procedure adopted by thelower court or the inference it drew from the circumstances surrounding the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on theone hand, he declared that appellants could not be permitted to introduce evidence on theresidence of the decedent, for they contestedthe jurisdiction of court, on the other hand, he

held, in the order appealed from, that, by cross-examining the appellee, said appellantshad submitted themselves to the authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the hearing, inthe lower court, appellants' counsel announced that he would take part therein "only toquestion the jurisdiction, for the purpose of dismissing this proceeding," (p. 2, t.s.n.). Duringthe cross-examination of petitioner herein, said counsel tried to elicit the relation betweenthe decedent and the appellants. As, the appellee objected thereto, the court said,addressing appellants' counsel: "Your stand until now is to question the jurisdiction of thecourt. . . . It you are trying to establish the status of the oppositors, I will sustain theobjection, unless you want to submit to the jurisdiction of the court" (p. 7, t.s.n.).Thereupon, appellants' counsel refused to do so, stating: "I will insist on my stand." Then,too, at the conclusion of the hearing, the court rejected Exhibits 1 and 2, for the reason thatappellants "refuse to submit to the jurisdiction of this courtand they maintain that theseproceedings should be dismissed." Thus, appellants specially made of record that they

were notsubmitting themselves to the jurisdiction of the court, except for thepurpose onlyofassailingthe same, and the court felt that appellants were not giving uptheir stand, which was, and is, a fact.

At any rate, appellants were entitled to establish facts tending to prove, not only their rightto object to appellee's petition, but, also, that venue had been laid improperly. Such factswere: (a) their alleged relationship with the decedent, 3 which, if true, entitle them toproceed him under the Civil Code of the Philippines; and (b) his alleged residence isPampanga. In other words, the lower court should have admitted Exhibits 1 and 2 inevidence and given thereto the proper effect, in connection with the issue underconsideration.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of FirstInstance of Quezon City on the ground of lack of jurisdiction or improper venue?" In this

connection, it appears that on November 14, 1953, the Clerk of the Court of First Instanceof Pampanga received a petition of appellants herein, dated November 4, 1953, for thesettlement of the "Intestate Estate of the la te Don Andres Eusebio". Attached to saidwpetition was petition for the docketing thereof free charge, pursuant to Rule 3, section 22,of the Rules of Court. The latter petition was granted by an order dated November 16,1953, which was received by the cashier of said court on November 17, 1953, on whichdate the case was docketed as Special Proceedings No. 957. On December 14, 1953,Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the children of the decedentby first marriage, including petitioner herein), moved for the dismissal of said proceedings,owing to the pendency of the present case, before the Court of First Instance of Rizal, sinceNovember 16, 1953. This motion was granted in an order dated December 21, 1953,relying upon the above Rule 75, section 1, of the Rules of Court, pursuant to which "the

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court first taking cognizance of the settlement of the estate of a decedent, shall exercisejurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar. Said orderdid not pass upon the question of domicile or residence of the decedent. Moreover, ingranting the court first taking cognizance of the case exclusive jurisdiction over the same,

said provision of the Rules of Court evidently refers to cases triable before two or morecourts with concurrentjurisdiction. It could not possibly have intended to deprive acompetent court of the authority vested therein by law, merely because a similar case hadbeen previously filed before a court to which jurisdiction is denied by law, for the samewould then be defeated by the will of one of the parties. More specially, said provisionrefers mainly to non-resident decedents who have properties in several provinces in thePhilippines, for the settlement of their respective estates may undertaken before the courtof first instance of either one of said provinces, not only because said courts then haveconcurrent jurisdiction and, hence, the one first taking cognizance of the case shallexclude the other courts but, also, because the statement to this effect in said section 1of Rule 75 of the Rules of the Court immediately follows the last part of the next precedingsentence, which deals with non-resident decedents, whose estate may settled the court offirst instance of any province in which they have properties.lawphil.net

In view, however, of the last sentence of said section, providing that:

. . . The jurisdiction assumed by a court, so far as it depends on the place ofresidence of the decedent, or of the location of his estate, shall not be contestedin a suit or proceedings, except in an appeal from that court, in the original case,or when the want of jurisdiction appears on the record.

if proceedings for the settlement of the estate of a deceased resident are instituted in two ormore courts, and the question of venue is raised before the same, the court in which thefirst case was filed shall have exclusive jurisdiction to decide said issue, and we so held inthe case of Taciana Vda. De Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, inthe proceedings before the said court, that venue had been improperly laid, the casepending therein should be dismissed and the corresponding proceedings may, thereafter,be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in SanFernando, Pampanga; that the Court of First Instance of Rizal had no authority, therefore,to appoint an administrator of the estate of the deceased, the venue having been laidimproperly; and that it should, accordingly, have sustained appellants' opposition anddismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition isdismissed, with costs against the appellee. It is so ordered.

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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.

L-42670 November 29, 1976

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

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

MARTIN, J.:

These two interrelated cases bring to Us the question of what the word "resides" in Section1, Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of theestate of deceased persons, means. Additionally, the rule in the appointment of a specialadministrator is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, atCalamba, 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 thejurisdiction of the Honorable Court." At the same time, she movedex parte for her appointment as special administratrix over the estate. On even date, May2, 1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contendingthat the order appointing Virginia G. Fule as special administratrix was issued withoutjurisdiction, since no notice of the petition for letters of administration has been served uponall persons interested in the estate; there has been no delay or cause for delay in theproceedings for the appointment of a regular administrator as the surviving spouse ofAmado 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 ofVirginia 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 administratrixalleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8,

1973 that her appointment was obtained through erroneous, misleading and/or incompletemisrepresentations; that Virginia G. Fule has adverse interest against the estate; and thatshe 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 byVirginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May17, 24, and 31, 1973, in the Bayanihan,a weekly publication of general circulation inSouthern Luzon.

On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for theAppointment of Regular Administrator ' filed by Virginia G. Fule. This supplemental petitionmodified the original petition in four aspects: (1) the allegation that during the lifetime of thedeceased Amado G. Garcia, he was elected as Constitutional Delegate for the First Districtof 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, isthe surviving spouse of Amado G. Garcia and that she has expressly renounced herpreferential right to the administration of the estate in favor of Virginia G. Fule; and (4) thatVirginia G. Fule be appointed as the regular administratrix. The admission of thissupplemental 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 thecourt 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 supplementalpetitions for letters of administration, raising the issues of jurisdiction, venue, lack of interestof Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fuleas special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authorityto take possession of properties of the decedent allegedly in the hands of third persons aswell as to secure cash advances from the Calamba Sugar Planters Cooperative MarketingAssociation, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitationmade by Judge Malvar on the power of the special administratrix, viz., "to making aninventory 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 PreciosaB. Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider theorder of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admittingthe supplementation petition of May 18,1973.

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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 thecourt; (2) venue was improperly laid; and (3) Virginia G. Fule is not a party in interest asshe 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 admittedbefore before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimateson 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 thespecial administratrix from taking possession of properties in the hands of third personswhich have not been determined as belonging to Amado G. Garcia; another, to remove thespecial 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 forwant 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 todismiss, Judge Malvar ruled that the powers of the special administratrix are those provided

for in Section 2, Rule 80 of the Rules of Court,

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subject only to the previous qualificationmade by the court that the administration of the properties subject of the marketingagreement with the Canlubang Sugar Planters Cooperative Marketing Association shouldremain with the latter; and that the special administratrix had already been authorized in aprevious order of August 20, 1973 to take custody and possession of all papers andcertificates of title and personal effects of the decedent with the Canlubang Sugar PlantersCooperative Marketing Association, Inc. Ramon Mercado, of the Canlubang Sugar PlantersCooperative Marketing Association, Inc., was ordered to deliver to Preciosa B. Garcia allcertificates 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 ofjurisdiction 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 thesupplemental petition, the failure of Virginia G. Fule to allege in her original petition forletters of administration in the place of residence of the decedent at the time of his deathwas cured. Judge Malvar further held that Preciosa B. Garcia had submitted to thejurisdiction of the court and had waived her objections thereto by praying to be appointedas special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify orreconsider the foregoing order of Judge Malvar, in view of previous court order limiting theauthority of the special administratrix to the making of an inventory. Preciosa B. Garcia alsoasked 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 substituteand remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denyingPreciosa 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 conductand submit an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing ordersof November 28, 1973 and December 19, 1973, insofar as they sustained or failed to ruleon 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 officeof 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 Malvarissued the other three questioned orders: one, directing Ramon Mercado, of the CalambaSugar Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, asspecial 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, directingPreciosa B. Garcia to deliver to Virginia G. Fule two motor vehicles presumably belongingto the estate; and another, directing Ramon Mercado to deliver to the court all certificates oftitle 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 JudgeMalvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing thathis residence at the time of his death was Quezon City. On her part, Preciosa B. Garciapresented the residence certificate of the decedent for 1973 showing that three monthsbefore his death his residence was in Quezon City. Virginia G. Fule also testified thatAmado G. Garcia was residing in Calamba, Laguna at the time of his death, and that hewas 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 actionfor 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 JudgeMalvar 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, denyingtheir 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 specialadministratrix, Virginia G. Fule, and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedingsbefore 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 forthwithelevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.

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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 ofadministration before the Court of First Instance of Rizal, Quezon City Branch, docketed asSp. Proc. No. Q-19738, over the same intestate estate of Amado G. Garcia. On February10, 1975, Preciosa B. Garcia urgently moved for her appointment as special administratrixof the estate. Judge Vicente G. Ericta granted the motion and appointed Preciosa B. Garciaas 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 thependency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance ofLaguna, and the annulment of the proceedings therein by the Court of Appeals on January30, 1975. She manifested, however, her willingness to withdraw Sp. Proc. Q-19738 shouldthe decision of the Court of Appeals annulling the proceedings before the Court of FirstInstance of Laguna in Sp. Proc. No. 27-C have not yet become final, it being the subject ofa motion for reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before hiscourt until Preciosa B. Garcia inform the court of the final outcome of the case pendingbefore the Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December11, 1975, an "Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venueand Jurisdiction" reiterating the grounds stated in the previous special appearance ofMarch 3, 1975, and calling attention that the decision of the Court of Appeals and itsresolution denying the motion for reconsideration had been appealed to this Court; that theparties had already filed their respective briefs; and that the case is still pending before theCourt.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued anorder 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 doubton the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance ofLaguna.

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 forcertiorari with temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain Judge Ernani Cruz Pao from further acting in the case. A restrainingorder was issued on February 9, 1976.

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

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is aninhabitant of the Philippines at the time of his death, whether a citizen or an alien, his willshall be proved, or letters of administration granted, and his estate settled, in the Court ofFirst Instance in the province in which he resides at the time of his death, and if he is aninhabitant of a foreign country, the Court of First Instance of any province in which he hadestate. The court first taking cognizance of the settlement of the estate of a decedent, shallexercise 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 hisestate, shall not be contested in a suit or proceeding, except in an appeal from that court, inthe original case, or when the want of jurisdiction appears on the record." With particularregard to letters of administration, Section 2, Rule 79 of the Revised Rules of Courtdemands that the petition therefor should affirmatively show the existence of jurisdiction tomake the appointment sought, and should allege all the necessary facts, such as death, thename 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 andhis last residence within the country are foundation facts upon which all subsequentproceedings in the administration of the estate rest, and that if the intestate was not aninhabitant of the state at the time of his death, and left no assets in the state, no jurisdictionis 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 theestate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement ofEstate of Deceased Persons. Venue and Processes. 4 It could not have been intended todefine the jurisdiction over the subject matter, because such legal provision is contained ina 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 thesubject matter "existed and was fixed before procedure in a given cause began." Thatpower or authority is not altered or changed by procedure, which simply directs the mannerin which the power or authority shall be fully and justly exercised. There are cases thoughthat 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 thatthe court may thereby lose jurisdiction over the person or that the judgment may thereby berendered defective for lack of something essential to sustain it. The appearance of thisprovision in the procedural law at once raises a strong presumption that it has nothing to dowith the jurisdiction of the court over the subject matter. In plain words, it is just a matter ofmethod, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdictionover all probate cases independently of the place of residence of the deceased. Because ofthe 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. Afortiori, the place of residence of the deceased in settlement of estates, probate of will, andissuance of letters of administration does not constitute an element of jurisdiction over thesubject matter. It is merely constitutive of venue. And it is upon this reason that the RevisedRules of Court properly considers the province where the estate of a deceased person shallbe settled as "venue." 6

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a Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 infavor of Agustina B. Garcia, he indicated therein that he is married to Preciosa B.Garcia. 22 In his certificate of candidacy for the office of Delegate to the ConstitutionalConvention for the First District of Laguna filed on September 1, 1970, he wrote therein thename of Preciosa B. Banaticla as his spouse. 23 Faced with these documents and thepresumption that a man and a woman deporting themselves as husband and wife haveentered 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 promatrimonio. 24

5. Under these circumstances and the doctrine laid down in Cuenco vs. Court ofAppeals, 25 this Court under its supervisory authority over all inferior courts may properlydecree that venue in the instant case was properly assumed by and transferred to QuezonCity and that it is in the interest of justice and avoidance of needless delay that the QuezonCity court's exercise of jurisdiction over the settlement of the estate of the deceased AmadoG. Garcia and the appointment of special administratrix over the latter's estate be approvedand authorized and the Court of First Instance of Laguna be disauthorized from continuingwith the case and instead be required to transfer all the records thereof to the Court of FirstInstance 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 SugarEstate to deliver to her as special administratrix the sum of P48,874.70 for payment of thesum 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.

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G.R. No. 128314 May 29, 2002

RODOLFO V. JAO, petitioner,vs.COURT OF APPEALS and PERICO V. JAO, respondents.

YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and AndreaV. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate,cash, shares of stock and other personal properties.

On April 17, 1991, Perico instituted a petition for issuance of letters of administration beforethe Regional Trial Court of Quezon City, Branch 99, over the estate of his parents,docketed as Special Proceedings No. Q-91-8507.1 Pending the appointment of a regularadministrator, Perico moved that he be appointed as special administrator. He alleged thathis brother, Rodolfo, was gradually dissipating the assets of the estate. More particularly,Rodolfo was receiving rentals from real properties without rendering any accounting, andforcibly opening vaults belonging to their deceased parents and disposing of the cash andvaluables therein.

Rodolfo moved for the dismissal of the petition on the ground of improper venue. 2 Heargued that the deceased spouses did not reside in Quezon City either during their lifetimeor at the time of their deaths. The decedents actual residence was in Angeles City,Pampanga, where his late mother used to run and operate a bakery. As the health of hisparents deteriorated due to old age, they stayed in Rodolfos residence at 61 Scout GandiaStreet, Quezon City, solely for the purpose of obtaining medical treatment andhospitalization. Rodolfo submitted documentary evidence previously executed by thedecedents, consisting of income tax returns, voters affidavits, statements of assets andliabilities, real estate tax payments, motor vehicle registration and passports, all indicatingthat their permanent residence was in Angeles City, Pampanga.1wphi1.nt

In his opposition,3 Perico countered that their deceased parents actually resided inRodolfos house in Quezon City at the time of their deaths. As a matter of fact, it was

conclusively declared in their death certificates that their last residence before they diedwas at 61 Scout Gandia Street, Quezon City. 4 Rodolfo himself even supplied the entryappearing on the death certificate of their mother, Andrea, and affixed his own signature onthe said document.

Rodolfo filed a rejoinder, stating that he gave the information regarding the decedentsresidence on the death certificates in good faith and through honest mistake. He gave hisresidence only as reference, considering that their parents were treated in their late yearsat the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his housewas merely transitory, in the same way that they were taken at different times for the samepurpose to Pericos residence at Legaspi Towers in Roxas Boulevard. The deathcertificates could not, therefore, be deemed conclusive evidence of the decedentsresidence in light of the other documents showing otherwise.5

The court required the parties to submit their respective nominees for the position.6 Bothfailed to comply, whereupon the trial court ordered that the petition be archived. 7

Subsequently, Perico moved that the intestate proceedings be revived.8 After the partiessubmitted the names of their respective nominees, the trial court designated Justice CarlosL. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.9

On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988and 1989, respectively, confirm the fact that Quezon City was the last place ofresidence of the decedents. Surprisingly, the entries appearing on the deathcertificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whosesignature appears in said document. Movant, therefore, cannot disown his ownrepresentation by taking an inconsistent position other than his own admission.xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lackof merit movants motion to dismiss.

SO ORDERED.10

Rodolfo filed a petition forcertiorariwith the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assaileddecision, the dispositive portion of which reads:

WHEREFORE, no error, much less any grave abuse of discretion of the court aquo having been shown, the petition for certiorari is hereby DISMISSED. Thequestioned order of the respondent Judge is affirmed in toto.

SO ORDERED.11

Rodolfos motion for reconsideration was denied by the Court of Appeals in the assailedresolution dated February 17, 1997.12 Hence, this petition for review, anchored on thefollowing grounds:

I

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN AWAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORYTO THE APPLICABLE DECISION ALREADY RENDERED BY THISHONORABLE COURT.

II

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RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THISHONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS.593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE INSEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE INA PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF DECEDENTSRESIDENCE RATHER THAN THE INTENTION OF THE DECEDENTS TOESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THERESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSEOF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TOTHE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THEPURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THEESTATE OF A DECEASED.

V

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRYOF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATHCERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMINGEVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TOESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI

RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OFESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE

PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTSTHEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

VII

RESPONDENT COURT ERRED IN DISMISSING THE PETITION FORCERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON THE PARTOF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE OF SP.PROCEEDING NO. Q-91-8507.13

The main issue before us is: where should the settlement proceedings be had --- inPampanga, where the decedents had their permanent residence, or in Quezon City, wherethey actually stayed before their demise?

Rule 73, Section 1 of the Rules of Court states:

Where estate of deceased persons be settled. If the decedent is an inhabitantof the Philippines at the time of his death, whether a citizen or an alien, his willshall be proved, or letters of administration granted, and his estate settled, in theCourt of First Instance in the province in which he resides at the time of hisdeath, and if he is an inhabitant of a foreign country, the Court of First Instance ofany province in which he had estate. The court first taking cognizance of thesettlement of the estate of a decedent shall exercise jurisdiction to the exclusionof all other courts. The jurisdiction assumed by a court, so far as it depends onthe place of residence of the decedent, or of the location of his estate, shall notbe contested in a suit or proceeding, except in an appeal from that court, in theoriginal case, or when the want of jurisdiction appears on the record.(underscoring ours)

Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of

administration granted in the proper court located in the province where thedecedent resides at the time of his death.

Petitioner Rodolfo invokes our ruling in the case ofEusebio v. Eusebio, et al.,14 where weheld that the situs of settlement proceedings shall be the place where the decedent had hispermanent residence or domicile at the time of death. In determining residence at the timeof death, the following factors must be considered, namely, the decedent had: (a) capacityto choose and freedom of choice; (b) physical presence at the place chosen; and (c)intention to stay therein permanently.15 While it appears that the decedents in this casechose to be physically present in Quezon City for medical convenience, petitioner aversthat they never adopted Quezon City as their permanent residence.1wphi1.nt

The contention lacks merit.

The facts in Eusebio were different from those in the case at bar. The decedent therein,Andres Eusebio, passed away while in the process of transferring his personal belongingsto a house in Quezon City. He was then suffering from a heart ailment and was advised byhis doctor/son to purchase a Quezon City residence, which was nearer to his doctor. Whilehe was able to acquire a house in Quezon City, Eusebio died even before he could movetherein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence--- in San Fernando, Pampanga. It cannot be said that Eusebio changed his residencebecause, strictly speaking, his physical presence in Quezon City was just temporary.

In the case at bar, there is substantial proof that the decedents have transferred topetitioners Quezon City residence. Petitioner failed to sufficiently refute respondentsassertion that their elderly parents stayed in his house for some three to four years beforethey died in the late 1980s.

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Furthermore, the decedents respective death certificates state that they were bothresidents of Quezon City at the time of their demise. Significantly, it was petitioner himselfwho filled up his late mothers death certificate. To our mind, this unqualifiedly shows that atthat time, at least, petitioner recognized his deceased mothers residence to be QuezonCity. Moreover, petitioner failed to contest the entry in Ignacios death certificate,accomplished a year earlier by respondent.

The recitals in the death certificates, which are admissible in evidence, were thus properlyconsidered and presumed to be correct by the court a quo. We agree with the appellatecourts observation that since the death certificates were accomplished even beforepetitioner and respondent quarreled over their inheritance, they may be relied upon toreflect the true situation at the time of their parents death.

The death certificates thus prevailed as proofs of the decedents residence at the time ofdeath,over the numerous documentary evidence presented by petitioner. To be sure, thedocuments presented by petitioner pertained not toresidence at the time of death, asrequired by the Rules of Court, but to permanent residence or domicile. InGarcia-Fule v.Court of Appeals,16 we held:

xxx xxx xxx the term "resides" connotes ex vi termini"actual residence" asdistinguished from "legal residence or domicile." This term "resides", like theterms "residing" and "residence", is elastic and should be interpreted in the lightof the object or purpose of the statute or rule in which it is employed. In theapplication of venue statutes and rules Section 1, Rule 73 of the Revised Rulesof Court is of such nature residence rather than domicile is the significantfactor. Even where the statute uses the word "domicile" still it is construed asmeaning residence and not domicile in the technical sense. Some cases make adistinction between the terms "residence" and "domicile" but as generally used instatutes fixing venue, the terms are synonymous, and convey the same meaningas the term "inhabitant." In other words, "resides" should be viewed orunderstood in its popular sense, meaning, the personal, actual or physicalhabitation of a person, actual residence or place of abode. It signifies physicalpresence in a place and actual stay thereat. In this popular sense, the termmeans merely residence, that is, personal residence, not legal residence ordomicile. Residence simply requires bodily presence as an inhabitant in a givenplace, while domicile requires bodily presence in that place and also an intentionto make it ones domicile. No particular length of time of residence is requiredthough; however, the residence must be more than temporary.17

Both the settlement court and the Court of Appeals found that the decedents have beenliving with petitioner at the time of their deaths and for some time prior thereto. We find thisconclusion to be substantiated by the evidence on record. A close perusal of thechallenged decision shows that, contrary to petitioners assertion, the court belowconsidered not only the decedents physical presence in Quezon City, but also other factorsindicating that the decedents stay therein was more than temporary. In the absence of anysubstantial showing that the lower courts factual findings stemmed from an erroneousapprehension of the evidence presented, the same must be held to be conclusive andbinding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section2,18 on ordinary civil actions, and Rule 73, Section 1, which applies specifically tosettlement proceedings. He argues that while venue in the former understandably refers toactual physical residence for the purpose of serving summons, it is the permanentresidence of the decedent which is significant in Rule 73, Section 1. Petitioner insists thatvenue for the settlement of estates can only refer to permanent residence or domicilebecause it is the place where the records of the properties are kept and where most of the

decedents properties are located.

Petitioners argument fails to persuade.

It does not necessarily follow that the records of a persons properties are kept in the placewhere he permanently resides. Neither can it be presumed that a persons properties canbe found mostly in the place where he establishes his domicile. It may be that he has hisdomicile in a place different from that where he keeps his records, or where he maintainsextensive personal and business interests. No generalizations can thus be formulated onthe matter, as the question of where to keep records or retain properties is entirelydependent upon an individuals choice and peculiarities.

At any rate, petitioner is obviously splitting straws when he differentiates between venue inordinary civil actions and venue in special proceedings. In Raymond v. Court ofAppeals19 and Bejer v. Court of Appeals,20 we ruled that venue for ordinary civil actions andthat for special proceedings have one and the same meaning. As thus defined, "residence",in the context of venue provisions, means nothing more than a persons actual residence orplace of abode, provided he resides therein with continuity and consistency. 21 All told, thelower court and the Court of Appeals correctly held that venue for the settlement of thedecedents intestate estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of theCourt of Appeals in CA-G.R. SP No. 35908 is AFFIRMED.

SO ORDERED.

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G.R. No. L-6622 July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DEBORJA, administrator-appellant,vs.JUAN DE BORJA, ET AL., oppositors-appellees.

E. V. Filamor for appellant.Juan de Borja for himself and co-appellees.

FELIX, J.:

The case. Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, arelegitimate children of Marcelo de Borja who, upon his demise sometime in 1924 or 1925,left a considerable amount of property. Intestate proceedings must have followed, and thepre-war records of the case either burned, lost or destroyed during the last war, becausethe record shows that in 1930 Quintin de Borja was already the administrator of theIntestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco deBorja, was appointed and took over as administrator of the Estate. Francisco de Borja, onthe other hand, assumed his duties as executor of the will of Quintin de Borja, but uponpetition of the heirs of said deceased on the ground that his interests were conflicting withthat of his brother's estate he was later required by the Court to resign as such executorand was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the approval of thestatement of accounts of the late administrator of the Intestate Estate of Marcelo de Borja,then being opposed by Francisco de Borja, the parties submitted an agreement, which wasapproved by the Court (Exh. A). Said agreement, translated into English, reads as follows:

1. All the accounts submitted and those that are to be submitted corresponding tothis year will be considered approved;

2. No heir shall claim anything of the harvests from the lands in Cainta that camefrom Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be considered asdeposited in conjunction with the other properties of the intestate and shall formpart of the mass without drawing any interest;

4. That it shall be understood as included in this mass the sum of twelvethousand pesos (P12,000) that the sisters Crisanta and Juliana de Borja paid oftheir own money as part of the price the lands and three thousand pesos(P3,000) the price of the machinery for irrigation;

5. The right, interests or participation that the deceased Quintin de Borja has ormay have in Civil Case No. 6190 of the Court of First Instance of Nueva Ecija,shall be likewise included in the total mass of the inheritance of the Intestate;

6. Not only the lands in Tabuatin but also those in Cainta coming from the nowdeceased Exequiel Ampil shall also from part of the total mass of the inheritance

of the Intestate of the late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made up as specified beforein this Agreement, partition thereof will be made as follows:

From the total mass shall be deducted in case or in kind, Twelve ThousandPesos (P12,000) that shall be delivered to Da. Juliana de Borja and Da. Crisantade Borja in equal shares, and the rest shall be divided among the four heirs, i. e.,Don Francisco de Borja, the heirs of Quintin de Borja, Da. Juliana de Borja, andDa. Crisanta de Borja, in equal parts. (TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the thenoutbreak of the war. From then on and until the termination of the war, there was a lull andstate of inaction in Special proceeding No. 2414 of the Court of First Instance of Rizal,

Pasig branch (In the Matter of the Intestate Estate of Marcelo de Borja), until upon petitionfiled by Miguel B. Dayco, as administrator of the estate of his deceased mother, Crisantade Borja, who is one of heirs, for reconstitution of the records of this case, the Court onDecember 11, 1945, ordered the reconstitution of the same, requiring the administrator tosubmit his report and a copy of the project of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for theperiod ranging from March 1 to December 22, 1945, which according to the heirs of Quintinde Borja were so inadequate and general that on February 28, 1946, they filed a motion forspecification. On April 30, 1946, they also filed their opposition to said statement ofaccounts alleging that the income reported in said statement was very much less than thetrue and actual income of the estate and that the expenses appearing therein wereexaggerated and/or not actually incurred, and prayed that the statement of accountssubmitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated August 9, 1949,corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing acash balance of P71.96, but with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja,filed their opposition to the statement of accounts filed by the administrator on the groundthat same was not detailed enough to enable the interested parties to verify the same; thatthey cannot understand why the Intestate could suffer any loss considering that during theadministration of the same by Quintin de Borja, the Estate accumulated gains of more thanP100,000 in the form of advances to the heirs as well as cash balance; that they desired toexamine the accounts of Dr. Crisanto de Borja to verify the loss and therefore prayed thatthe administrator be ordered to deposit with the Clerk of Court all books, receipts, accounts

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and other papers pertaining to the Estate of Marcelo de Borja. This motion was answeredby the administrator contending that the Report referred to was already clear and enough,the income as well as the expenditures being specified therein; that he had to spend for therepairs of the properties of the Estate damaged during the Japanese occupation; that theallegation that during the administration of Quintin de Boria the Estate realized a profit ofP100,000 was not true, because instead of gain there was even a shortage in the fundsalthough said administrator had collected all his fees (honorarios) and commissions

corresponding to the entire period of his incumbency; that the obligations mentioned in saidreport will be liquidated before the termination of the proceedings in the same manner as itis done in any other intestate case; that he was willing to submit all the receipts of theaccounts for the examination of the interested parties before the Clerk or before the Courtitself; that this Intestate could be terminated, the project of partition having been allowedand confirmed by the Supreme Court and that the Administrator was also desirous ofterminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of accounts covering theperiod of from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95,with pending obligations in the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition saidstatement of accounts and prayed the Court to disapprove the same and to appoint an

account to go over the books of the administrator and to submit a report thereon as soon aspossible. The heir Juliana de Borja also formally offered her objection to the approval of theaccounts submitted by the administrator and prayed further that said administrator berequired to submit a complete accounting of his administration of the Estate from 1937 to1949. On the other hand, Francisco de Borja and Miguel B. Dayco, as the only heir of thedeceased Crisanta de Borja, submitted to the Court an agreement to relieve theadministrator from accounting for the period of the Japanese occupation; that as to theaccounting from 1937 to 1941, they affirmed their conformity with the agreement enteredinto by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have noobjection to the approval of the statement of accounts submitted by the administratorcovering of the years 1945 to 1949.

On December 6, 1949, the administrator, answered the opposition of the heir Juliana deBorja, alleging that the corresponding statement of accounts for the years 1937, 1938,1939, 1940 and 1941 were presented and approved by the Court before and during theJapanese occupation, but the records of the same were destroyed in the Office of the Clerkof that Court during the liberation of the province of Rizal, and his personal records werealso lost during the Japanese occupation, when his house was burned; that Judge Peawho was presiding over the Court in 1945 impliedly denied the petition of heirs to requirehim to render an accounting for the period from 1942 to the early part of 1945, for thereason that whatever money obtained from the Estate during said period could not bemade the subject of any adjudication it having been declared fiat money and without value,and ordered that the statement of accounts be presented only for the period starting fromMarch 1, 1945. The administrator further stated that he was anxious to terminate thisadministration but some of the heirs had not yet complied with the conditions imposed inthe project of partition which was approved by the Supreme Court; that in accordance withsaid partition agreement, Juliana de Borja must deliver to the administrator all the jewelry,objects of value, utensils and other personal belongings of the deceased spouses Marcelo

de Borja and Tircila Quiogue, which said heir had kept and continued to retain in herpossession; that the heirs of Quintin de Borja should deliver to the administrator all thelands and a document transferring in favor of the Intestate the two parcels of land with atotal area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in thepossession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya,which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project ofpartition; that as consequence of the said dispossession the heirs of Quintin de Borja must

deliver to the administrator the products of the 71 hectares of land in Cabanatuan, NuevaEcija, and the rentals of the house of Feliciana Mariano or else render to the Court anaccounting of the products of these properties from the time they took possession of thesame in 1937 to the present; that there was a pending obligation amounting to P36,000 asof September 14, 1949, which the heirs should pay before the properties adjudicated tothem would be delivered. The Court, however, ordered the administrator on December 10,1949, to show and prove by evidence why he should not be accounts the proceeds of hisadministration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belongingto the deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personalbelonging of said spouses, and signified her willingness to turn over to the administrator thesilver wares mentioned in Paragraph III of the project of partition, which were the onlyproperty in her care, on the date that she would expect the delivery to her of her share inthe inheritance from her deceased parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba andOlimpia, all surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the deliveryto them of their inheritance in the estate, tendering to the administrator a document cedingand transferring to the latter all the rights, interests and participation of Quintin de Borja inCivil Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the provisionsof the project of Partition, and expressing their willingness to put up a bond if required to doso by the Court, and on July 18, 1950, the Court ordered the administrator to deliver toMarcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all surnamed de Borja, all theproperties adjudicated to them in the Project of Partition dated February 8, 1944, upon thelatter's filing a bond in the sum of P10,000 conditioned upon the payment of such obligationas may be ordered by the Court after a hearing on the controverted accounts of theadministrator. The Court considered the fact that the heirs had complied with therequirement imposed by the Project of Partition when they tendered the document ceding

and transferring the rights and interests of Quintin de Borja in the aforementioned landsand expressed the necessity of terminating the proceedings as soon as practicable,observing that the Estate had been under administration for over twenty-five years already.The Court, however, deferred action on the petition filed by the special administratrix of theIntestate Estate of Juliana de Borja until after compliance with the conditions imposed bythe project of partition. But on July 20, 1950, apparently before the properties weredelivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion informing theCourt that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed bysome heirs; that the administrator Crisanto de Borja had not taken possession of the samefor circumstances beyond his control; and that there also existed the sum of P70,204 whichthe former administrator, Quintin de Borja, received from properties that were redeemed,but which amount did not come into the hands of the present, administrator because

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according to reliable information, same was delivered to the heir Juliana de Borja whodeposited it in her name at the Philippine National Bank. It was, therefore prayed that theadministrator be required to exert the necessary effort to ascertain the identity of the personor persons who were in possession of the same amount and of the value of the products ofthe lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover the same for the IntestateEstate.

On July 28, 1950, the special administratrix of the estate of Juliana de Borja, thendeceased, filed an answer to the motion of these two heirs, denying the allegation that saidheir any product of the lands mentioned from Quintin de Borja, and informed the Court thatthe Mayapyap property had always been in the possession of Francisco de Borja himselfand prayed the court that the administrator be instructed to demand all the fruits andproducts of said property from Francisco de Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motionof Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluousbecause the present proceeding was only for the approval of the statement of accountsfiled by the administrator; that said motion was improper because it was asking the Court toorder the administrator to perform what he was duty bound to do; and that said heirs werealready barred or stopped from raising that question in view of their absolute ratification ofand assent to the statement of accounts submitted by the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja inthe project of Partition were finally delivered to the estate of said heir upon the filing of abond for P20,000. In that same order, the Court denied the administrator's motion toreconsider the order of July 18, 1950, requiring him to deliver to the heirs of Quintin deBorja the properties corresponding to them, on the ground that there existed no sufficientreason to disturb said order. It also ruled that as the petition of Francisco de Borja andMiguel B. Dayco made mention of certain properties allegedly belonging to the Intestate,said petition should properly be considered to gather with the final accounts of theadministrator.

The administrator raised the matter by certiorarito this Tribunal, which was, docketed asG.R. No. L-4179, and on May 30, 1951, We rendered decision affirming the ordercomplained of, finding that the Juan de Borja and sisters have complied with the

requirement imposed in the Project of Partition upon the tender of the document of cessionof rights and quit-claim executed by Marcela de Borja, the administratrix of the Estate ofQuintin de Borja, and holding that the reasons advanced by the administrator in opposingthe execution of the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of accounts coveringthe period from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660.An additional statement of accounts filed on August 31, 1961 for the period of from August1, 1949, to August 31, 1951, showed a cash balance of P5,851.17 and pending obligationsin the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the statements of accountscharging the administrator with having failed to include the fruits which the estate shouldhave accrued from 1941 to 1951 amounting to P479,429.70, but as the other heirs seemedsatisfied with the accounts presented by said administrator and as their group was only oneof the 4 heirs of Intestate Estate, they prayed that the administrator be held liable for onlyP119,932.42 which was 1/4 of the amount alleged to have been omitted. On October 4,1951, the administrator filed a reply to said opposition containing a counterclaim for moral

damages against all the heirs of Quintin de Borja in the sum of P30,000 which wasadmitted by the Court over the objection of the heirs of Quintin de Borja that the saidpleading was filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaimdenying the charges therein, but later served interrogatories on the administrator relative tothe averments of said counterclaim. Upon receipt of the answer to said interrogatoriesspecifying the acts upon which the claim for moral damages was based, the oppositors filedan amended answer contending that inasmuch as the acts, manifestations and pleadingsreferred to therein were admittedly committed and prepared by their lawyer, Atty. AmadorE. Gomez, same cannot be made the basis of a counterclaim, said lawyer not being a partyto the action, and furthermore, as the acts upon which the claim for moral damages werebased had been committed prior to the effectivity of the new Civil Code, the provisions ofsaid Code on moral damages could not be invoked. On January 15, 1952, the administratorfiled an amended counterclaim including the counsel for the oppositors as defendant.

There followed a momentary respite in the proceedings until another judge was assigned topreside over said court to dispose of the old case pending therein. On August 15, 1952,Judge Encarnacion issued an order denying admission to administrator's amendedcounterclaim directed against the lawyer, Atty. Amador E. Gomez, holding that a lawyer,not being a party to the action, cannot be made answerable for counterclaims. Anotherorder was also issued on the same date dismissing the administrator's counterclaim formoral damages against the heirs of Quintin de Borja and their counsel for the allegeddefamatory acts, manifestation and utterances, and stating that granting the same to bemeritorious, yet it was a strictly private controversy between said heirs and theadministrator which would not in any way affect the interest of the Intestate, and, therefore,not proper in an intestate proceedings. The Court stressed that to allow the ventilation ofsuch personal controversies would further delay the proceedings in the case which hadalready lagged for almost 30 years, a situation which the Court would not countenance.

Having disposed of these pending incidents which arose out of the principal issue, that is,the disputed statement of accounts submitted by the administrator, the Court renderedjudgment on September 5, 1952, ordering the administrator to distribute the funds in hispossession to the heirs as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 toFrancisco de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B.Dayco, but as the latter still owed the intestate the sum of P900, said heirs was ordered topay instead the 3 others the sum of P146.05 each. After considering the testimonies of thewitnesses presented by both parties and the available records on hand, the Court found theadministrator guilty of maladministration and sentenced Crisanto de Borja to pay to theoppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of theamount which the state lost, with legal interest from the date of the judgment. On the sameday, the Court also issued an order requiring the administrator to deliver to the Clerk of that

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Court PNB Certificate of Deposit No. 211649 for P978.50 which was issued in the name ofQuintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court'sorders of August 15, 1952, the decision of September 5, 1952, and the order of even date,but when the Record on Appeal was finally approved, the Court ordered the exclusion ofthe appeal from the order of September 5, 1952, requiring the administrator to deposit thePNB Certificate of Deposit No. 2114649 with the Clerk of Court, after the oppositors hadshown that during the hearing of that incident, the parties agreed to abide by whateverresolution the Court would make on the ownership of the funds covered by that deposit.

The issues. Reducing the issues to bare essentials, the questions left for ourdetermination are: (1) whether the counsel for a party in a case may be included as adefendant in a counterclaim; (2) whether a claim for moral damages may be entertained ina proceeding for the settlement of an estate; (3) what may be considered as acts ofmaladministration and whether an administrator, as the one in the case at bar, may be heldaccountable for any loss or damage that the estate under his administration may incur byreason of his negligence, bad faith or acts of maladministration; and (4) in the case at barhas the Intestate or any of the heirs suffered any loss or damage by reason of theadministrator's negligence, bad faith or maladministration? If so, what is the amount of suchloss or damage?

I. Section 1, Rule 10, of the Rules of Court defines a counterclaim as:

SECTION 1. Counterclaim Defined. A counterclaim is any claim, whether formoney or otherwise, which a party may have against the opposing party. Acounterclaim need not dismiss or defeat the recovery sought by the opposingparty, but may claim relief exceeding in amount or different in kind from thatsought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant against the adverse party which may or may not be independent from the mainissue. There is no controversy in the case at bar, that the acts, manifestations andactuations alleged to be defamatory and upon which the counterclaim was based weredone or prepared by counsel for oppositors; and the administrator contends that as the veryoppositors manifested that whatever civil liability arising from acts, actuations, pleadingsand manifestations attributable to their lawyer is enforceable against said lawyer, theamended counterclaim was filed against the latter not in his individual or personal capacitybut as counsel for the oppositors. It is his stand, therefore, that the lower erred in denyingadmission to said pleading. We differ from the view taken by the administrator. Theappearance of a lawyer as counsel for a party and his participation in a case as suchcounsel does not make him a party to the action. The fact that he represents the interestsof his client or that he acts in their behalf will not hold him liable for or make him entitled toany award that the Court may adjudicate to the parties, other than his professional fees.The principle that a counterclaim cannot be filed against persons who are acting inrepresentation of another such as trustees in their individual capacities(Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be appliedwith more force and effect in the case of a counsel whose participation in the action is

merely confined to the preparation of the defense of his client. Appellant, however,asserted that he filed the counterclaim against said lawyer not in his individual capacity butas counsel for the heirs of Quintin de Borja. But as we have already stated that theexistence of a lawyer-client relationship does not make the former a party to the action,even this allegation of appellant will not alter the result We have arrived at.

Granting that the lawyer really employed intemperate language in the course of thehearings or in the preparation of the pleadings filed in connection with this case, theremedy against said counsel would be to have him cited for contempt of court or take otheradministrative measures that may be proper in the case, but certainly not a counterclaim formoral damages.

II. Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch)was instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In takingcognizance of the case, the Court was clothed with a limited jurisdiction which cannotexpand to collateral matters not arising out of or in any way related to the settlement andadjudication of the properties of the deceased, for it is a settled rule that the jurisdiction of aprobate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although there is atendency now to relax this rule and extend the jurisdiction of the probate court in respect tomatters incidental and collateral to the exercise of its recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases related to those powers

specifically allowed by the statutes. For it was even said that:

Probate proceedings are purely statutory and their functions limited to the controlof the property upon the death of its owner, and cannot extend to the adjudicationof collateral questions (Woesmes, The American Law of Administration, Vol. I, p.514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower court dismissed theadministrator's counterclaim for moral damages against the oppositors, particularly againstMarcela de Borja who allegedly uttered derogatory remarks intended to cast dishonor tosaid administrator sometime in 1950 or 1951, his Honor's ground being that the courtexercising limited jurisdiction cannot entertain claims of this kind which should properlybelong to a court general jurisdiction. From what ever angle it may be looked at, acounterclaim for moral damages demanded by an administrator against the heirs for

alleged utterances, pleadings and actuations made in the course of the proceeding, is anextraneous matter in a testate or intestate proceedings. The injection into the action ofincidental questions entirely foreign in probate proceedings should not be encouraged for todo otherwise would run counter to the clear intention of the law, for it was held that:

The speedy settlement of the estate of deceased persons for the benefit of thecreditors and those entitled to the residue by way of inheritance or legacy afterthe debts and expenses of administration have been paid, is the ruling spirit ofour probate law (Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).

III. and IV. This appeal arose from the opposition of the heirs of Quintin de Borja to theapproval of the statements of accounts rendered by the administrator of the Intestate

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Estate of Marcelo de Borja, on the ground that certain fruits which should have beenaccrued to the estate were unaccounted for, which charge the administrator denied. After aprotracted and extensive hearing on the matter, the Court, finding the administrator, Dr.Crisanto de Borja, guilty of certain acts of maladministration, held him liable for thepayment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the unreported incomewhich the estate should have received. The evidence presented in the court below bear outthe following facts:

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 inAzcarraga Street, Manila, situated in front of the Arranque market. Of this property, theadministrator reported to have received for the estate the following rentals:

Period of time Total rentalsAnnual

monthlyrental

March to December, 1945 P3,085.00 P51.42

January to December, 1946 4,980.00 69.17



January to December, 1949 8,840.00 122.77January to December, 1950 6,060.00 184.16

Total P40,295.00

The oppositors, in disputing this record income, presented at the witness stand LauroAguila, a lawyer who occupied the basement of Door No. 1541 and the whole of Door No.1543 from 1945 to November 15, 1949, and who testified that he paid rentals on saidapartments as follows:

1945

Door No. 1541 (basement)

February P20.00 Door No. 1543

March 20.00 For 7 months at P300

April 60.00 a month P2,100.00

May-December 800.00

Total P900.00

1946

January-December P1,200.00 January-December P4,080.00

1947

January P100.00 January P380.00

February 100.00 February 380.00

March 180.00 March 1-15 190.00

Apr il-December 1 ,140.00 March 16-December 4 ,085.00

P1,820.00 P5,035.00

1948

January-December P1,920.00 January-December P5,150.00

1949January-November 15 P1,680.00 January-December P4,315.00

From the testimony of said witness, it appears that from 1945 to November 15,1949, hepaid a total of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541.These figures were not controverted or disputed by the administrator but claim that saidtenant subleased the apartments occupied by Pedro Enriquez and Soledad Sodora andpaid the said rentals, not to the administrator, but to said Enriquez. The transcript of thetestimony of this witness really bolster this contention that Lauro Aguila talked with saidPedro Enriquez when he leased the aforementioned apartments and admitted paying therentals to the latter and not to the administrator. It is interesting to note that Pedro Enriquezis the same person who appeared to be the administrator's collector, duly authorized toreceive the rentals from this Azcarraga property and for which services, said Enriquezreceived 5 per cent of the amount he might be able to collect as commission. If we are to

believe appellant's contention, aside from the commission that Pedro Enriquez received healso sublet the apartments he was occupying at a very much higher rate than that heactually paid the estate without the knowledge of the administrator or with his approval. Asthe administrator also seemed to possess that peculiar habit of giving little importance tobookkeeping methods, for he never kept a ledger or book of entry for amounts received forthe estate, We find no record of the rentals the lessees of the other doors were paying. Itwas, however, brought about at the hearing that the 6 doors of this building are of the samesizes and construction and the lower Court based its computation of the amount thisproperty should have earned for the estate on the rental paid by Atty. Aguila for the 1 1/2doors that he occupied. We see no excuse why the administrator could not have takencognizance of these rates and received the same for the benefit of the estate he wasadministering, considering the fact that he used to make trips to Manila usually once amonth and for which he charged to the estate P8 as transportation expenses for every trip.

Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800

from February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held himaccountable not only for the sum of P34,235 reported for the period ranging from March 1,1945, to December 31, 1949, but also for a deficit of P90,525 or a total of P124,760. Therecord shows, however that the upper floor of Door No. 1549 was vacant in September,1949, and as Atty. Aguila used to pay P390 a month for the use of an entire apartment fromSeptember to November, 1949, and he also paid P160 for the use of the basement of anapartment (Door No. 1541), the use, therefore, of said upper floor would cost P230 whichshould be deducted, even if the computation of the lower Court would have to be followed.

There being no proper evidence to show that the administrator collected more rentals thanthose reported by him, except in the instance already mentioned, We are reluctant to boldhim accountable in the amount for which he was held liable by the lower Court, and Wethink that under the circumstances it would be more just to add to the sum reported by the

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administrator as received by him as rents for 1945-1949 only, the difference between thesum reported as paid by Atty. Aguila and the sum actually paid by the latter as rents of 11/2 of the apartments during the said period, or P25,457.09 1/4 of which is P6,364.27 whichshall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered to the other heirsDoors Nos. 1545, 1547, 1549 and 1551 although Doors Nos. 154

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