G.R. No.

L-8235

March 19, 1914

ISIDRO SANTOS, plaintiff-appellant,

vs.
LEANDRA MANARANG, administratrix, defendant-appellee.
W. A. Kincaid and Thomas L. Hartigan for appellant.
Ramon Salinas for appellee.
TRENT, J.:
Don Lucas de Ocampo died on November 18, 1906, possessed of certain real and personal
property which, by his last will and testament dated July 26, 1906, he left to his three children.
The fourth clause of this will reads as follows:
I also declare that I have contracted the debts detailed below, and it is my desire that they
may be religiously paid by my wife and executors in the form and at the time agreed
upon with my creditors.
Among the debts mentioned in the list referred to are two in favor of the plaintiff, Isidro Santos;
one due on April 14, 1907, for P5,000, and various other described as falling due at different
dates (the dates are not given) amounting to the sum of P2,454. The will was duly probated and a
committee was regularly appointed to hear and determine such claims against the estate as might
be presented. This committee submitted its report to the court on June 27, 1908. On July 14,
1908, the plaintiff, Isidro Santos, presented a petition to the court asking that the committee be
required to reconvene and pass upon his claims against the estate which were recognized in the
will of testator. This petition was denied by the court, and on November 21, 1910, the plaintiff
instituted the present proceedings against the administratrix of the estate to recover the sums
mentioned in the will as due him. Relief was denied in the court below, and now appeals to this
court.
In his first assignment of error, the appellant takes exception to the action of the court in denying
his petition asking that the committee be reconvened to consider his claim. In support of this
alleged error counsel say that it does not appear in the committee's report that the publications
required by section 687 of the Code of Civil Procedure had been duly made. With reference to
this point the record affirmatively shows that the committee did make the publications required
by law. It is further alleged that at the time the appellant presented his petition the court had not
approved the report of the committee. If this were necessary we might say that, although the
record does not contain a formal approval of the committee's report, such approval must
undoubtedly have been made, as will appear from an inspection of the various orders of the court
approving the annual accounts of the administratrix, in which claims allowed against the estate
by the committee were written off in accordance with its report. This is shown very clearly from
the court's order of August 1, 1912, in which the account of the administratrix was approved after
reducing final payments of some of the claims against the estate to agree with the amounts

allowed by the committee. It is further alleged that at the time this petition was presented the
administration proceedings had not been terminated. This is correct.
In his petition of July 14, 1909, asking that the committee be reconvened to consider his claims,
plaintiff states that his failure to present the said claims to the committee was due to his belief
that it was unnecessary to do so because of the fact that the testator, in his will, expressly
recognized them and directed that they should be paid. The inference is that had plaintiff's claims
not been mentioned in the will he would have presented to the committee as a matter of course;
that plaintiff was held to believe by this express mention of his claims in the will that it would be
unnecessary to present them to the committee; and that he did not become aware of the necessity
of presenting them to the committee until after the committee had made its final report.
Under these facts and circumstances, did the court err in refusing to reconvene the committee for
the purpose of considering plaintiff's claim? The first step towards the solution of this question is
to determine whether plaintiff's claims were such as a committee appointed to hear claims
against an estate is, by law, authorized to pass upon. Unless it was such a claim plaintiff's
argument has no foundation. Section 686 empowers the committee to try and decide claims
which survive against the executors and administrators, even though they be demandable at a
future day "except claims for the possession of or title to real estate." Section 700 provides that
all actions commenced against the deceased person for the recovery of money, debt, or damages,
pending at the time the committee is appointed, shall be discontinued, and the claims embraced
within such actions presented to the committee. Section 703 provides that actions to recover title
or possession of real property, actions to recover damages for injury to person or property, real
and personal, and actions to recover the possession of specified articles of personal property,
shall survive, and may be commenced and prosecuted against the executor or administrator; "but
all other actions commenced against the deceased before his death shall be discontinued and the
claims therein involved presented before the committee as herein provided." Section 708
provides that a claim secured by a mortgage or other collateral security may be abandoned and
the claim prosecuted before the committee, or the mortgage may be foreclosed or the security be
relied upon, and in the event of a deficiency judgment, the creditor may, after the sale of
mortgage or upon the insufficiency of the security, prove such deficiency before the committee
on claims. There are also certain provisions in section 746 et seq., with reference to the
presentation of contingent claims to the committee after the expiration of the time allowed for
the presentation of claims not contingent. Do plaintiff's claims fall within any of these sections?
They are described in the will as debts. There is nothing in the will to indicate that any or all of
them are contingent claims, claims for the possession of or title to real property, damages for
injury to person or property, real or personal, or for the possession of specified articles of
personal property. Nor is it asserted by the plaintiff that they do. The conclusion is that they were
claims proper to be considered by the committee.
This being true, the next point to determine is, when and under what circumstances may the
committee be recalled to consider belated claims? Section 689 provides:
That court shall allow such time as the circumstances of the case require for the creditors
to present their claims the committee for examination and allowance; but not, in the first
instance, more than twelve months, or less than six months; and the time allowed shall be

stated in the commission. The court may extend the time as circumstances require, but
not so that the whole time shall exceed eighteen months.
It cannot be questioned that thus section supersedes the ordinary limitation of actions provided
for in chapter 3 of the Code. It is strictly confined, in its application, to claims against the estate
of deceased persons, and has been almost universally adopted as part of the probate law of the
United States. It is commonly termed the statute of nonclaims, and its purpose is to settle the
affairs of the estate with dispatch, so that residue may be delivered to the persons entitled thereto
without their being afterwards called upon to respond in actions for claims, which, under the
ordinary statute of limitations, have not yet prescribed.
The object of the law in fixing a definite period within which claims must be presented is
to insure the speedy settling of the affairs of a deceased person and the early delivery of
the property of the estate in the hands of the persons entitled to receive it. (Estate of De
Dios, 24 Phil. Rep., 573.)
Due possibly to the comparative shortness of the period of limitation applying to such claims as
compared with the ordinary statute of limitations, the statute of nonclaims has not the finality of
the ordinary statute of limitations. It may be safely said that a saving provision, more or less
liberal, is annexed to the statute of nonclaims in every jurisdiction where is found. In this country
its saving clause is found in section 690, which reads as follows:
On application of a creditor who has failed to present his claim, if made within six
months after the time previously limited, or, if a committee fails to give the notice
required by this chapter, and such application is made before the final settlement of the
estate, the court may, for cause shown, and on such terms as are equitable, renew the
commission and allow further time, not exceeding one month, for the committee to
examine such claim, in which case it shall personally notify the parties of the time and
place of hearing, and as soon as may be make the return of their doings to the court.
If the committee fails to give the notice required, that is a sufficient cause for reconvening it for
further consideration of claims which may not have been presented before its final report was
submitted to the court. But, as stated above, this is not the case made by the plaintiff, as the
committee did give the notice required by law. Where the proper notice has been given the right
to have the committee recalled for the consideration of a belated claim appears to rest first upon
the condition that it is presented within six months after the time previously limited for the
presentation of claims. In the present case the time previously limited was six months from July
23, 1907. This allowed the plaintiff until January 23, 1908, to present his claims to the
committee. An extension of this time under section 690 rested in the discretion of the court.
(Estate of De Dios, supra.) In other words, the court could extend this time and recall the
committee for a consideration of the plaintiff's claims against the estate of justice required it, at
any time within the six months after January 23, 1908, or until July 23, 1908. Plaintiff's petition
was not presented until July 14, 1909. The bar of the statute of nonclaims is an conclusive under
these circumstances as the bar of the ordinary statute of limitations would be. It is generally held
that claims are not barred as to property not included in the inventory. (Waughop vs. Bartlett, 165
III., 124; Estate of Reyes, 17 Phil. Rep., 188.) So also, as indicated by this court in the case last

cited, fraud would undoubtedly have the same effect. These exceptions to the operation of the
statute are, of course, founded upon the highest principles of equity. But what is the plea of the
plaintiff in this case? Simply this: That he was laboring under a mistake of law a mistake
which could easily have been corrected had he sought to inform himself; a lack of information as
to the law governing the allowance of claims against estate of the deceased persons which, by
proper diligence, could have been remedied in ample to present the claims to the committee.
Plaintiff finally discovered his mistake and now seeks to assert his right when they have been
lost through his own negligence. Ignorantia legis neminem excusat. We conclude that the learned
trial court made no error in refusing to reconvene the committee for the purpose of considering
plaintiff's claims against the estate.
In his second assignment of error the appellant insists that the court erred in dismissing his
petition filed on November 21, 1910, wherein he asks that the administratrix be compelled to pay
over to him the amounts mentioned in the will as debts due him. We concede all that is implied in
the maxim, dicat testor et erit lex. But the law imposes certain restrictions upon the testator, not
only as to the disposition of his estate, but also as to the manner in which he may make such
disposition. As stated in Rood on Wills, sec. 412: "Some general rules have been irrevocably
established by the policy of the law, which cannot be exceeded or transgressed by any intention
of the testator, be it ever so clearly expressed."
It may be safely asserted that no respectable authority can be found which holds that the will of
the testator may override positive provisions of law and imperative requirements of public
policy. (Page on Wills, sec. 461.)
Impossible conditions and those contrary to law and good morals shall be considered as
not imposed, . . . (Art. 792, Civil Code.)
Conceding for the moment that it was the testator's desire in the present case that the debts listed
by him in his will should be paid without referring them to a committee appointed by the court,
can such a provision be enforced? May the provisions of the Code of Civil Procedure relating to
the settlement of claims against an estate by a committee appointed by the court be superseded
by the contents of a will?
It is evident from the brief outline of the sections referred to above that the Code of Civil
Procedure has established a system for the allowance of claims against the estates of decedents.
Those are at least two restrictions imposed by law upon the power of the testator to dispose of his
property, and which pro tanto restrict the maxim that "the will of the testator law: (1) His estate
is liable for all legal obligations incurred by him; and (2) he can not dispose of or encumber the
legal portion due his heirs by force of law. The former take precedence over the latter. (Sec. 640,
Code Civ, Proc.) In case his estate is sufficient they must be paid. (Sec, 734, id.) In case the
estate is insolvent they must be paid in the order named in section 735. It is hardly necessary to
say that a provision in an insolvent's will that a certain debt be paid would not entitle it to
preference over other debts. But, if the express mention of a debt in the will requires the
administrator to pay it without reference to the committee, what assurance is there, in the case of
an insolvent estate, that it will not take precedence over preferred debts?

If it is unnecessary to present such claim to the committee, the source of nonclaims is not
applicable. It is not barred until from four to ten years, according to its classification in chapter 3
of the Code of Civil Procedure, establishing questions upon actions. Under such circumstances,
when then the legal portion is determined? If, in the meantime the estate has been distributed,
what security have the differences against the interruption of their possession? Is the
administrator required to pay the amount stipulated in the will regardless of its correctness? And,
if not, what authority has he to vise the claim? Section 706 of the Code of Civil Procedure
provides that an executor may, with the approval of the court, compound with a debtor of
deceased for a debt due the estate, But he is nowhere permitted or directed to deal with a creditor
of the estate. On the contrary, he is the advocate of the estate before an impartial committee with
quasi-judicial power to determine the amount of the claims against the estate, and, in certain
cases, to equitably adjust the amounts due. The administrator, representing the debtor estate, and
the creditor appear before this body as parties litigant and, if either is dissatisfied with its
decision, an appeal to the court is their remedy. To allow the administrator to examine and
approve a claim against the estate would put him in the dual role of a claimant and a judge. The
law in this jurisdiction has been so framed that this may not occur. The most important
restriction, in this jurisdiction, on the disposition of property by will are those provisions of the
Civil Code providing for the preservation of the legal portions due to heirs by force of law, and
expressly recognized and continued in force by sections 614, 684, and 753 of the Code of Civil
Procedure. But if a debt is expressly recognized in the will must be paid without its being
verified, there is nothing to prevent a partial or total alienation of the legal portion by means of a
bequest under a guise of a debt, since all of the latter must be paid before the amount of the legal
portion can be determined.
We are aware that in some jurisdictions executors and administrators are, by law, obligated to
perform the duties which, in this jurisdiction, are assign to the committee on claims; that in some
other jurisdictions it is the probate court itself that performs these duties; that in some
jurisdictions the limitation upon the presentment of claims for allowance is longer and, possibly,
in some shorter; and that there is a great divergence in the classification of actions which survive
and actions which do not survive the death of the testator. It must be further remembered that
there are but few of the United States which provide for heirs by force of law. These differences
render useless as authorities in this jurisdiction many of the cases coming from the United States.
The restriction imposed upon the testator's power to dispose of his property when they are heirs
by force of law is especially important. The rights of these heirs by force law pass immediately
upon the death of the testator. (Art. 657, Civil Code.) The state intervenes and guarantees their
rights by many stringent provisions of law to the extent mentioned in article 818 of the Civil
Code. Having undertaken the responsibility to deliver the legal portion of the net assets of the
estate to the heirs by force of law, it is idle to talk of substituting for the procedure provided by
law for determining the legal portion, some other procedure provided in the will of the testator.
The state cannot afford to allow the performance of its obligations to be directed by the will of an
individual. There is but one instance in which the settlement of the estate according to the
probate procedure provided in the Code of Civil Procedure may be dispense with, and it applies
only to intestate estates. (Sec. 596, Code Civ. Proc.) A partial exemption from the lawful
procedure is also contained in section 644, when the executor or administrator is the sole
residuary legatee. Even in such case, and although the testator directs that no bond be given, the
executor is required to give a bond for the payment of the debts of the testator. The facts of the

present case do not bring it within either of this sections. We conclude that the claims against the
estate in the case at bar were enforceable only when the prescribed legal procedure was followed.
But we are not disposed to rest our conclusion upon this phase of the case entirely upon legal
grounds. On the contrary we are strongly of the opinion that the application of the maxim, "The
will of the testator is the law of the case," but strengthens our position so far as the present case
is concerned.
It will ordinarily be presumed in construing a will that the testator is acquainted with the
rules of law, and that he intended to comply with them accordingly. If two constructions
of a will or a part thereof are possible, and one of these constructions is consistent with
the law, and the other is inconsistent, the presumption that the testator intended to comply
with the law will compel that construction which is consistent with the law to be adopted.
(Page on Wills, sec. 465.)
Aside from this legal presumption, which we believe should apply in the present case as against
any construction of the will tending to show an intention of the testator that the ordinary legal
method of probating claims should be dispensed with, it must be remembered that the testator
knows that the execution of his will in no way affects his control over his property. The dates of
his will and of his death may be separated by a period of time more or less appreciable. In the
meantime, as the testator well knows, he may acquire or dispose of property, pay or assume
additional debts, etc. In the absence of anything to the contrary, it is only proper to presume that
the testator, in his will, is treating of his estate at the time and in the condition it is in at his death.
Especially is this true of his debts. Debts may accrue and be paid in whole or in part between the
time the will is made and the death of the testator. To allow a debt mentioned in the will in the
amount expressed therein on the ground that such was the desire of the testator, when, in fact, the
debt had been wholly or partly paid, would be not only unjust to the residuary heirs, but a
reflection upon the good sense of the testator himself. Take the present case for example. It
would be absurd to say that the testator knew what the amount of his just debt would be at a
future and uncertain date. A mere comparison of the list of the creditors of the testator and the
amounts due them as described in his will, with the same list and amounts allowed by the
committee on claims, shows that the testator had creditors at the time of his death not mention in
the will at all. In other instances the amounts due this creditors were either greater or less than
the amounts mentioned as due them in the will. In fact, of those debts listed in the will, not a
single one was allowed by the committee in the amount named in the will. This show that the
testator either failed to list in his will all his creditors and that, as to those he did include, he set
down an erroneous amount opposite their names; or else, which is the only reasonable view of
the matter, he overlooked some debts or contracted new ones after the will was made and that as
to others he did include he made a partial payments on some and incurred additional
indebtedness as to others.
While the testator expresses the desire that his debts be paid, he also expressly leaves the residue
of his estate, in equal parts, to his children. Is it to be presumed that he desired to overpay some
of his creditors notwithstanding his express instructions that his own children should enjoy the
net assets of his estate after the debts were paid? Again, is the net statement of the amount due
some of his creditors and the omission all together of some of his creditors compatible with his

honorable and commendable desire, so clearly expressed in his will, that all his debts be
punctually paid? We cannot conceive that such conflicting ideas were present in the testator's
mind when he made his will.
Again, suppose the testator erroneously charged himself with a debt which he was under no legal
or even moral obligation to pay. The present case suggests, if it does not actually present, such a
state of affairs. Among the assets of the estate mentioned in the will is a parcel of land valued at
P6,500; while in the inventory of the administratrix the right to repurchase this land from one
Isidro Santos is listed as an asset. Counsel for the administratrix alleges that he is prepared to
prove that this is the identical plaintiff in the case at bar; that the testator erroneously claimed the
fee of this land in his last will and stated Santos' rights in the same as a mere debt due him of
P5,000; that in reality, the only asset of the testator regard to this land was the value of the right
to repurchase, while the ownership of the land, subject only to that right of redemption, belonged
to Santos; that the right to repurchase this land expired in 1907, after the testator's death.
Assuming, without in the least asserting, that such are the underlying facts of this case, the unjust
consequences of holding that a debt expressly mentioned in the will may be recovered without
being presented to the committee on claims, is at once apparent. In this supposed case, plaintiff
needed only wait until the time for redemption of the land had expired, when he would acquired
an absolute title to the land, and could also have exacted the redemption price. Upon such a state
of facts, the one item of P5,000 would be a mere fictitious debt, and as the total net value of the
estate was less than P15,000, the legal portion of the testator's children would be consumed in
part in the payment of this item. Such a case cannot occur if the prescribed procedure is followed
of requiring of such claims be viseed by the committee on claims.
The direction in the will for the executor to pay all just debts does not mean that he shall
pay them without probate. There is nothing in the will to indicate that the testator in
tended that his estate should be administered in any other than the regular way under the
statute, which requires "all demands against the estates of the deceased persons," "all
such demands as may be exhibited," etc. The statute provides the very means for
ascertaining whether the claims against the estate or just debts. (Kaufman vs. Redwine,
97 Ark., 546.)
See also Collamore vs. Wilder (19 Kan., 67); O'Neil vs. Freeman (45 N. J. L., 208).
The petition of the plaintiff filed on November 21, 1910, wherein he asks that the administratrix
be compelled to pay over to him the amounts mentioned in the will as debts due him appears to
be nothing more nor less than a complaint instituting an action against the administratrix for the
recovery of the sum of money. Obviously, the plaintiff is not seeking possession of or title to real
property or specific articles of personal property.
When a committee is appointed as herein provided, no action or suit shall be commenced
or prosecute against the executor or administrator upon a claim against the estate to
recover a debt due from the state; but actions to recover the seizing and possession of real
estate and personal chattels claimed by the estate may be commenced against him. (Sec.
699, Code Civ. Proc.)

The sum of money prayed for in the complaint must be due the plaintiff either as a debt of a
legacy. If it is a debt, the action was erroneously instituted against the administratrix. Is it a
legacy?
Plaintiff's argument at this point becomes obviously inconsistent. Under his first assignment of
error he alleges that the committee on claims should have been reconvened to pass upon his
claim against the estate. It is clear that this committee has nothing to do with legacies. It is true
that a debt may be left as a legacy, either to the debtor (in which case it virtually amounts to a
release), or to a third person. But this case can only arise when the debt is an asset of the estate.
It would be absurd to speak of a testator's leaving a bare legacy of his own debt. (Arts. 866, 878,
Civil Code.) The creation of a legacy depends upon the will of the testator, is an act of pure
beneficence, has no binding force until his death, and may be avoided in whole or in part by the
mere with whim of the testator, prior to that time. A debt arises from an obligation recognized by
law (art. 1089, Civil Code) and once established, can only be extinguished in a lawful manner.
(Art. 1156, id.) Debts are demandable and must be paid in legal tender. Legacies may, and often
do, consist of specific articles of personal property and must be satisfied accordingly. In order to
collect as legacy the sum mentioned in the will as due him, the plaintiff must show that it is in
fact a legacy and not a debt. As he has already attempted to show that this sum represents a debt,
it is an anomaly to urge now it is a legacy.
Was it the intention of the testator to leave the plaintiff a legacy of P7,454? We have already
touched upon this question. Plaintiff's claim is described by the testator as a debt. It must be
presumed that he used this expression in its ordinary and common acceptation; that is, a legal
liability existing in favor of the plaintiff at the time the will was made, and demandable and
payable in legal tender. Had the testator desired to leave a legacy to the plaintiff, he would have
done so in appropriate language instead of including it in a statement of what he owed the
plaintiff. The decedent's purpose in listing his debts in his will is set forth in the fourth clause of
the will, quoted above. There is nothing contained in that clause which indicates, even remotely,
a desire to pay his creditors more than was legally due them.
A construction leading to a legal, just and sensible result is presumed to be correct, as
against one leading to an illegal, unnatural, or absurd effect. (Rood on Wills, sec. 426.)
The testator, in so many words, left the total net assets of his estate, without reservation of any
kind, to his children per capita. There is no indication that he desired to leave anything by way of
legacy to any other person. These considerations clearly refute the suggestion that the testator
intended to leave plaintiff any thing by way of legacy. His claim against the estate having been a
simple debt, the present action was improperly instituted against the administratrix. (Sec. 699,
Code Civ. Proc.)
But it is said that the plaintiff's claims should be considered as partaking of the nature of a legacy
and disposed of accordingly. If this be perfect then the plaintiff would receive nothing until after
all debts had been paid and the heirs by force of law had received their shares. From any point of
view the inevitable result is that there must be a hearing sometime before some tribunal to
determine the correctness of the debts recognized in the wills of deceased persons. This hearing,

in the first instance, can not be had before the court because the law does not authorize it. Such
debtors must present their claims to the committee, otherwise their claims will be forever barred.
For the foregoing reasons the orders appealed from are affirmed, with costs against the appellant.
Torres, Carson and Araullo, JJ., concur.

Separate Opinions
MORELAND, J., dissenting:
The decision of the court in this case produces, in my humble opinion, a serious miscarriage of
justice. It causes the appellant to lose more than P7,000, a debt against the respondent estate,
which debt, but a few months before his death, was specifically recognized by the testator in his
will as a debt due and owing to petitioner and which he, in said will, ordered and directed his
executor to pay "religiously."
If I could find justification for such a decision either in the proceedings as they are unfolded by
the record or in the law as laid down in the Code of Civil Procedure, I would, of course,
acquiesce. Far from finding such justification, I am met so far as my judgment can discern, with
facts of record which demonstrate conclusively that the decision is erroneous in fact.
The opinion seeks to demonstrate that a creditor, whose claim is recognized by the highest
possible authority, the debtor himself, in the most solemn instrument known to the law, his last
will and testament, as legal, just and valid, must lose that claim because the validity thereof has
not been established by the committee. And this inspite of the fact that, upon the record of the
case, no one interested in the estate disputes the claim or challengers its validity. Take this
proposition in connection with the fact that the committee to hear claims had not been
discharged, that the estate has not been finally closed but is still pending settlement, and that,
therefore, there exist not a single reason, in equity or justice, why the claimant should not be
permitted to present his claim, if that is necessary, and we have before us a situation which
indicates how far the decision has gone.
It should be carefully observed that the petitioner Isidro Santos, was defeated in this litigation
upon the ground, and the sole ground, that he did not present his claim to the committee, in
pursuance of a notice to creditors published under an order dated July 23, 1907, and that he,
therefore, lost the right to enforce the claim; that the notice having been published from July 25,
1907, to August 16, 1907, petitioner's application on July 14, 1909, for the extension of time for
the presentation of claims to the old committee or the appointment of a new committee for that
purpose, was too late and was properly denied, and that his motion made November 21, 1909,
praying that the executor be compelled to carry out the wishes of the testator and pay the claim,
was also properly denied.
In my judgment the decision is erroneous from whatever point viewed:

1. Even if it be assumed that the notice to creditors should have been published in accordance
with the order of July 23, 1907, the record is entirely lacking in legal evidence to establish the
publication which the law requires under that order. That being so the claim is not barred.
2. I contend, and the record shows, that the notice should not have been published in accordance
with the order of July 23, 1907, but in pursuance of an order of January 8, 1908, which was an
order for a new publication, and, being later order, necessarily vacated and annulled the order of
July 23, 1907, and all proceedings thereunder relative to the matters included in said order of
January 8, 1908; that publication was concededly never made under and in pursuance of that
order and that, for that reason, the petitioner's claim is not barred.
3. The claim was not one that must be submitted to a committee, being recognized as a legal and
valid debt by the will and the testator having ordered his executor to pay it. The motion made to
require the executor to pay the claim should have been heard by the court.
The facts of this case, as shown by the record, are:
Don Lucas de Ocampo made a will July 26, 1906. He died November 18, 1906. The will
specifically named Isidoro Santos, the petitioner, a creditor of the testator, set out the specific
amount due him, named an executor, and directed him to pay the claim "religiously."
The will was probated July 15, 1907, and Leandra Manarang, the widow, appointed temporary
administratrix. Her administration was terminated on July 23, 1907, and Cosme Naval, the
person named in the will as executor, was, on that date, duly appointed executor. On the same
day Pedro Abad Santos and Marcos Tancuaco were named the committee of appraisal and to her
claims presented against the estate, the court making the following order:
There having been heard the petition presented by Seor Cosme Naval, praying that he be
appointed executor of the above named estate as provided in the will of the deceased
Lucas de Ocampo; and also praying the appointment of a committee of appraisal
consisting of Seores Pedro Abad Santos and Marcos Tancuaco:
It is ordered that the said Cosme Naval may be and he hereby is appointed executor of the
will of Lucas de Ocampo, deceased, the clerk being authorized to issue in favor of said
Cosme Naval letters testamentary, the petitioner being first required to take the oath
prescribed by law and to file a bond in the sum of P500 Philippine currency, with two
sureties satisfactory to the court.
It is also ordered that the special letters of administration issued temporarily in favor of
the widow of the deceased, Leandra Manarang, remain without effect from this day.
It is further ordered that Seores Pedro Abad Santos and Marcos Tancuaco be and they
hereby appointed the committee of appraisal and claims of this estate.

On the 28th of September, 1907, Naval was removed from office and Leandra Manarang named
in his place. On December 3, same year, Pedro Abad Santos resigned from the committee to
become the attorney for the estate and Donato Iturralde was appointed in his stead.
Following these changes both in the office of executor and in that of the committee, on January
8, 1908, the court made an order which, in itself, is, in my judgment, a complete refutation of the
decision in this case and demonstrates that a contrary judgment should have been rendered. That
order, dated, as I have said, on January 8, 1908, and promulgated on that day, reads as follows:
Whereas, the Hon. Julio Llorente, in decree dated December 3, 1907, appointed Seor
Donato Iturralde, a resident of this city, to the office of committee of appraisal in the
above-entitled proceeding:
Therefore, and in compliance with the above-mentioned decree, Seor Donato Iturralde, a
resident of this city, is appointed a member of the committee of appraisal and to hear the
claims that may be presented against the property of this estate, which committee within
thirty days from the date of said decree shall deliver a copy of the inventory to this court
and another to the administratrix Seora Leandra Manarang, and within sixty days shall
post a notice at the main door of this courthouse and in three public places in the
municipality where the property of the said deceased is located, in which shall be stated
the dates and places when and where the meetings of the committee will be held and
notifying that creditors that they should present their claims within six months counting
from the date of said notice; said notice, furthermore, to be published during three
consecutive weeks in the newspaper "El Imparcial," having general circulation in this
province.
Given to-day, the 8th of January, 1908, by order of the Hon. Julio Llorente, Judge of the
Fourth Judicial District and of this Province of Pampanga.
On July 14, 1908, the committee filed a report, the only report in the record, in which appears the
following statement:
The undersigned, committee of appraisal and claims against the above estate, presents a
to the court the following list of all claims presented against the said estate since the 25th
day of July, 1907, in which date the first publication to creditors was made.
The publication under which committee was reporting was begun under the order of July 23,
1907, which was vacated and annulled by the order of January 8, 1908, which, by reason of the
changes in the offices of executor and committee, ordered a new and different notice to the
creditors.
On July 14, 1909, petitioner herein made an application to the court to reopen the sessions of the
committee and permit him to present the claim mentioned in the will. This was denied November
27, 1909, the court simply saying:

This cause having been heard and the parties having presented their arguments, the
motion is denied by reason of the lapse of time.
On November 21, 1910, the petitioner moved the court that, the testator having recognized and
legalized the debt in his will and having ordered his executor to pay the same to the petitioner,
said executor be ordered and directed to pay said claim to the petitioner pursuant to the testator's
directions. This motion was denied April 26, 1911, upon the same ground as the other motion.
The appeal is from both of these orders and brings up so much of the record as is pertinent to
these questions.
The court has held on this appeal:
1. That the motion last mentioned is an action. The opinion says: "The petition of the plaintiff
filed on November 21, 1910, . . . appears to be nothing more or less than a complaint instituting
an action against the administratrix for the recovery of the sum of money." After discussing this
phase of the case the court concludes: "His claim against the estate having been a simple debt,
the present action was improperly instituted against the administratrix (sec. 699, Code of Civ.
Proc.)." This is one of the grounds of the decision.
2. That the recognition of the debt in the will and the direction of the testator to pay the same
have no significance in the law.
3. That, notwithstanding this recognition and direction, the claim should have been presented to
the committee appointed to hear and determine claims against the estate.
4. That the claim was not presented to the committee.
5. That all of the formalities required by law relative to the notice to the creditors t present their
claims were fully observed, the court saying that "the record affirmatively shows that the
committee did make the publications required by law."
6. That the court below did not err in denying the motion to extend the time of the old committee
or appoint a new one to the end that the claim in question might be presented.
7. That the court did not err in denying the motion to compel the executor to pay the claim in
pursuance of the direction contained in the will.
Laying aside for a moment those holdings of the court which declare that the claim is one which
must be presented to and passed upon by a committee. I am compelled to differ from every other
propositions and statement of fact appearing in the decision pertinent to the issue involved,
except the single one that the claim was not presented to a committee. That it was not presented
is conceded; indeed, that fact that it was not is the whole cause of this proceeding.

I am compelled to believe that the statement of the decision that "the record affirmatively shows
that the committee did make the publications required by law," is not quite in accordance with
the record as I read it.
The opinion does not refer me to any evidence of record which supports its statement. Where is
this evidence, where is this record which "affirmatively shows?" I have been unable to find it.
Here is all the evidence, if it may be called evidence, which I am able to find it in the record
relative to the publication of the notices to the creditors:
(a) An affidavit of the publisher of "El Imparcial" setting out that the notice to creditors attached
to the affidavit and signed by Pedro Abad Santos (who before the completion of the publication,
resigned) and Marcos Tancuaco, dated July 23, 1907, was published "three weeks from the 25th
of July to the 16th of August, 1907."
The notice referred to is as follows:
The undersigned committee of appraisal hereby notifies the creditors of Lucas de
Ocampo, deceased, and all other persons who have claims against the estate of said
deceased, to present the same with vouchers within six months from the date of this
notice to the committee, every Monday, between 4 and 5 o'clock p. m., at the dwelling
house of Pedro A. Santos, Sagasta Street, San Fernando, Pampanga. Dated San Fernando,
Pampanga, P. I., July 23, 1907. Signed: Pedro Abad Santos, committee. Marcos
Tancuaco, committee.
The defectiveness of the affidavit is apparent. It does not show whether the newspaper was daily,
weekly, biweekly or monthly, or the day of the week or month on which published. It does not
show that the notice was published three weeks successively, that is, once each week for three
successive weeks, as required by law and the order of the court. So ambiguous is it that is might
mean that the notice was published once, namely, three weeks from July 25. Passing, however,
these defects, I note that the notice to creditors requires them to present their claims at the
dwelling house of Pedro Abad Santos. It should be noted, as before stated, that this commissioner
resigned before the expiration of the six months, thus making it necessary for creditors to present
their claims and their proofs thereof to one who was not a member of the committee and to a
man who, immediately on his resignation, became the attorney of the estate. This will become
important when we later discuss the significance of the fact that the court, as already seen, on
January 8, 1908, made a new order requiring that a new notice be given to creditors, to be
published thereafter, thereby revoking the order of July 23, 1907, and annulling the notice to
creditors above set out and then in course of publication.
(b) The remaining item of evidence which it is claimed tends to show that the notice to creditors
was duly published is the reference made by the commissioners in their report to the court, above
quoted, in which they say, referring to July 25, 19076, "on which date the first publication to
creditors was made."

This reference cannot be called evidence of publication, although the court accepts it as such. At
most it refers and is limited, in terms, to the first publication. It has not the slightest reference to
the other publications, if any.
This, (a) and (b), is all evidence in the whole record relative to the publication of the notice to
creditors. Admitting it all to be true and giving it all weight possible, does it establish
"affirmatively that the committee did make the publications required by law?" I am of the
opinion not The law requires, in addition to the publication in the newspapers, that "the
committee . . . shall post a notice in four public places in province stating the times and places of
their meetings, and the time limited for creditors to present their claims . . . and give such other
notice as the court directs.
Where is there in the record evidence showing that this was done? Nowhere. As I read the
record, there is not a syllable of such evidence in all the case.
I, therefore, am forced to the conclusion that the declaration of the court that "the record
affirmatively shows that the committee did make the publications required by law" is without
sufficient evidence to support it.
After a thorough reading of the record, I am reluctantly forced to a further conclusion, namely,
that instead of there being evidence in the case showing the publication required by law. there is
evidence showing the precise contrary.
Let us remember that the first order of the court directing the committee to publish notice to
creditors was issued July 23, 1907. It conceded that publication in a newspaper of some sort was
started under that order. But, the court, evidently becoming satisfied that, under all the
circumstances, the publication under that order would not be sufficient to give creditors fair
notice, on January 8, 1908, and before the publication under the first order, if there was ever
started in reality a publication under that order, was completed, made a second order of
publication. The reason for this order was evidently that, during the six months succeeding the
date of the notice which it is claimed was published under the first order, three persons held the
office of executor, the complexion of the committee itself was changed, and the member of the
committee at whose house the notice required the claims and vouchers to be presented resigned
from the committee and became the attorney for the estate. Pedro Abad Santos having ceased to
be a member of the committee and having become the attorney for the estate, and the notice to
the creditors requiring that claims with their vouchers to be presented at his house, there was no
longer a proper place designated where creditors could present their claims. Furthermore, the
continual change in the executorship already noted may have resulted in grave prejudice to the
estate if the estate were to be held responsible for all claims presented during the time those
changes were taking place, it being the duty of the executor, under the law, to be present at the
hearing on claims and defend the estate against those which deemed unjust, and the frequent
change in the office, thereby bringing the persons unfamiliar with what had gone before,
certainly not tending to efficiency.
All these facts, taken in connection with the defectiveness of the affidavit of the publication of
the notice, and the fact that there was no posting of the notices as required by law, that the notice

itself was defective in that it required the claims to be presented within six months from the date
of the notice instead of the date of the last publication thereof, as the law, properly interpreted,
requires, all these facts, I say, undoubtedly led the court to believe that the previous proceedings
relative to claims should be annulled and that a new order of publication should be made.
Accordingly, on January 8, 1908, as aforesaid, an order was made and entered as above set forth,
requiring a new publication by a new committee. This order had the effect, of course, of vacating
and annulling the previous order covering the same subject matter.
It is undisputed that no publication has ever been made or even attempted under this order of
January 8, 1908. The only publication referred to in the record or in the opinion in this case is
that under the order of July 23, 1907. No one contends that any other publication has ever been
made or attempted.
That this order of January 8, 1908, was considered the governing order in the case and that it was
an annullment of all prior proceedings and orders relative to the same subject matter, is clear. If
notice had been given as provided by the order, the six months' term, according to the order,
would have expired some time in July, 1908. This, of course, was clearly understood by the
court, and we find the court, ever anxious to have the estate settled as quickly as possible under
the law, making the following order on the 2d day of April, 1908:
It is hereby ordered that the administratrix present her inventory before the 1st day of
May and the committee its report within the time provided by law, and that the
administratrix present her account before the 1st day of August, 1908.
This order demonstrates conclusively that the court believed that the committee was giving the
notice to creditors as provided by order of January 8, 1908, and not that of July 23, 1907; for, if
the notice was to be given under the latter and the publication began July 25, 1907, then the time
within which the committee was to report expired in January, 1908 (see opinion), long before the
order of April 2, 1908, was issued (Code Civ. Proc., sec. 693) and the requirement therein that
the committee report "within the time provided by law" was idle. The court evidently believed
that the notice was being published under the order of January 8, 1908, that the six months'
period would expire in July, that the committee could therefore report to the administratrix the
number and amounts of the claims presented and allowed, and that she could, therefore render
her account before the 1st day of August, as in the order of April 2 required. This order is strictly
inconsistent from every point of view with the idea that the order of July 23, 1907, was in force
and that publication of the notice to creditors was proceeding thereunder.
I, therefore, say that the record demonstrates not only that the declaration of the court that "the
record affirmatively shows that the committee did make the publications required by law" is
without sufficient foundation in fact, but also that the contrary is true, namely, that no publication
was ever made under the only order under which it could be legally made.
I contend, furthermore, that this proceeding is not an action against an executor to recover a debt
against the estate of his testator. The decision of the court that it is an action and not being one of
those which, under the Code, can be brought against an executor and must be dismissed for that
reason is, in my judgment, erroneous. I do not understand how a motion to compel an executor to

comply with the directions in a will can be called an action to recover a debt in a sense that such
motion is prohibited by law.
Dealing with the second branch of the case, wherein the court holds that the debt should have
been presented to a committee:
The proposition that a debt which is recognized by the highest possible authority, the debtor
himself, in then most solemn instrument known to the law and the one whose provisions are the
most sacredly carried out by the courts, his last will and testament, which debt the testator, in his
will, expressly ordered his executor to pay to the creditor by name, must be presented to the
committee for them to determine whether it is a valid claim and whether it ought to be paid, is a
proposition which appeals neither to my reason nor my sense of justice. There is no statute
expressly requiring such presentation. There is none which by necessary implication requires it.
To bring such a debt within the law requiring presentation to the committee, interpretation and
construction must be invoked to such an extent as to shock if not violate the ordinary canons
applicable thereto. This is particularly true when such interpretation and construction are resorted
to deprive a creditor of a claim, the validity and justice of which is not only undisputed but
unquestioned.
There is no provision of the Code of Civil Procedure expressly requiring the presentation of any
claim to a committee. Provision is made for the appointment of a committee which is authorized
to hear certain classes of claims but nowhere is there an express provision requiring a creditor to
present his claim. There is, to be sure, a section which provides (sec. 695) that if the creditor fails
to present his claim, if it is a certain kind of claim, within the time provided in the law, it will be
barred. It is therefore, gathered by implication that every creditor having a certain kind of claim
must present it; but there is no provision expressly requiring it. Moreover, it must be carefully
noted that only certain claims need to be presented to the committee and that only certain claims
are barred provided they are not exhibited. Section 686 confers upon the committee whatever
jurisdiction it may have with respect to the hearing of claims, apart from those which actions
were begun against decedent in his lifetime. It provides that "they may try and decide upon
claims, which by law survive against executors or administrators, except claims for the
possession of or title to real state;" and under section 695 only those claims are barred which are
" proper to be allowed by the committee."
We see then that the committee is authorized to take jurisdiction over those claims only which
survive against an executor or administrator. The code does not define or declare "what claims
survive against executor or administrators." It refers to certain actions which, having been
commenced by the deceased in his lifetime, may be continued after his death by his executor or
administrator. It nowhere tells us "what claims survive against executors or administrators, " or
what claims are " proper to be allowed by the committee." We are unable to say, therefore, from
the context of the Code itself what the authors thereof meant by the use of the phrases "claims
which survive against executors or administrators" and which are "proper to be allowed by the
committee." All that is clear is that it was the intention of the law to restrict the jurisdiction of
the committee and keep it within certain limitations, and to that end used these limited
expressions. It should be noted, however, that these limitations refer to claims and have no
reference to actions begun against the deceased before his death. The distinction made in the

Code between claims and actions begun against the decedent during his lifetime, and the
respective provisions referring to those two subjects, is entirely lost sight of in the decision of the
court. This being so, the following reasoning found in the decision, based upon the failure to
distinguish between claims and actions begun against the deceased in his lifetime, involves a
conclusion in no sense related to the premises from which it is deduced:
Do plaintiff's claims fall within any of these sections? They are described in the will, as
debts, There is nothing in the will to indicate that any or all of them are contingent
claims, claims for the possession of or title to real property damages for injury to person
or property, real or personal, or for the possession of specified articles of personal
property. Nor is it asserted by the plaintiff that they do. The conclusion is that, they were
claims proper to be considered by the committee.
That there is no necessary relation between those two subjects is apparent. That an action for
"money, debt, or damages" begun against the decedent in his lifetime must, under section 710, be
discontinued upon his death "and the claim embraced in such action may be presented to the
committee, who shall allow the party prevailing the cost of such action to the time of its
discontinuance," does not necessarily mean that such claim, if no action had been begun upon it,
is one which must be exhibited to the committee. Whether an action begun against the decedent
in his lifetime survives or does not survive, has no necessary relation with the necessity of
presenting a claim to the committee. Would it be logical to argue that because an action begun
against the deceased did not survive, the claim upon which it is based cannot, therefore, be
presented to the committee, or that because in action begun against the deceased in his lifetime
did survive, that, therefore, the claim upon which it was based could and must be presented to the
committee? Assuredly not.
No general requirement that all claims must be presented to the committee appearing in the
Code, and it affirmatively appearing that there was an intention to restrict the power of the
committee in the hearing of claims, it necessarily follows that the conclusion reached by the
court that all claims must be exhibited to the committee is pure inference and one but at all
warranted by the provisions of the Code or by the rules of interpretation and construction, To me
it is a conclusion absolutely necessary from the language of sections 686 and 695 that not all
claims need to be exhibited. By express language these sections restrict the committee to the
hearing of such claims as survive against executors or administrators and only those are barred
which are proper to be presented to the committee.
The answer to the question, does not claim at bar survive against executors or administrators,
brings us to an exposition of the various fundamental error made by the court in holding that the
debt in question is one which must be presented to the committee. One of them is involved in the
declaration that the debt in question is a claim within the meaning of the law. In cases such as
this it is proper and necessary to make a distinction between a claim and a debt. A debt is a claim
which has been favorably passed upon by the highest authority to which in can in law be
submitted and has been declared to be a debt. A claim, on the other hand, is a debt in embryo. It
is a mere evidence of a debt and must pass through the process prescribed by law before it
develops into what is properly called a debt. The debt in the case at bar never was a claim. By the
act of the testator himself, it was raised to the dignity of a debt and it remains such and must be

acted upon as such by the courts as well as by all other. It was by the testator selected from the
mass of his obligations, which are correctly called claims, and treated to a process which
developed it into a thing called a "debt" over which no committee has jurisdiction and with the
due course of which it has no authority to interfere.
The second fundamental error, following naturally from the first, is found in the declaration of
the court that the debt in question is a claim which survives against the executors or
administrator and must, therefore, be exhibit to the committee. This error involves, in my
humble opinion, a misunderstanding of the nature of a will imposes upon all persons executing
it. A will is the testator speaking after death. Its provisions have substantially the same force and
effect in the probate court as if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That was the special purpose of the law
in the creation of the instrument known as the last will and testament. Men wished to speak after
they were dead and the law, by the creation of that instrument, permitted them to do so. It is a
upon this theory and around this purpose that there has grown that body of the law which
uniformly and universally declares that the words of the testator spoken in his will shall be
sacredly attended by his executor and enforced by the court. It has been declared a fundamental
maxim, the first greatest rule, the sovereign guide, the polestar, in giving effect to the will, that
the intention of the testator as expressed in the will shall be fully and punctually observed. If by
the use of clear and certain, his will explains itself, and all that the court can do is to give it
effect. All doubts must be resolved in favor of the testator's having meant just what he said. His
purpose may seem unjust, unnatural or absurd to us; yet, to refuse to execute it is to destroy it. As
Chief Justice Marshall said: "That intent of the testator is the cardinal rule in the construction of
wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law,
it must prevail." (3 Peters, 346.)
The intention of the testator is said in the recent Virginia case to be "the life and soul of a will"
and if this intention is clear it must be govern with absolute sway. A will is not like a promissory
note or a judgment or any other instrument which acknowledges or incorporates an obligation.
Those instruments are mere evidences of a debt. A will is not, primarily, evidence of anything; it
is the thing itself. It is not so much the evidence of what the testator did or intended to do; it is
then testator himself. The court has failed in this case to distinguish between a will and a
promissory note, or a mortgage, so far as their legal effects are concerned, and the statement
which I made early in this opinion, that the court has given no legal significance whatever to the
fact that the instrument in which this debt was acknowledged and in which it was ordered paid
was a last will and testament, is literally true. It has given the testamentary directions of the
testator no more force, effect or significance than it gives to the words of a promissory note or a
mortgage.
The third fundamental error which the decision has fallen is that it is misconceives the duties of
an executor and of a court relative to the provisions of the will. It is, of course, axiomatic that is
the duty of the executor, under the direction of the court, to carry out punctually and with the
utmost care every provision of the will. That is why he is named "executor." He is an "executor"
of a will because he "executes" the will. When he refuses or neglects to perform that function he
ceases to be an executor and becomes a perverter or destroyer. Section 640 provides that the
estate of the decedent shall be disposed of according to his will and the bond to be given by an

executor, prescribed in section 643, must contain a clause in which the executor agrees, and his
bondsmen assure, that he will administer "according to the will of the testator" the estate which
comes into his hands.
Under the provisions of this will it is as much the duty of the executor to pay the debt here in
litigation as it is to pay a legacy bequeathed by the will or to carry out a devise found therein. Of
course, as we shall see later, if it appear to the executor that the debt in suit was paid, in whole or
in part, as the case may be. In such case his refusal to pay will not be a refusal to carry out the
will, but will be grounded in fact that the testator himself executed it prior to his demise. The
proposition remains that the will must be executed; and the only excuse the executor can give for
a refusal to execute it is that it has already been executed.
It is nowhere claimed in this case, and it cannot be, for no proceeding has reached far enough to
involve the fact, that this debt has been paid, and nowhere in the record has its validity or binding
force upon the estate been challenged or even disputed. That being the case, upon the facts, as
they stand before us, there is no excuse which the executor of the court can now offer why the
debt in suit has not been paid.
The fourth fundamental error into which the court has fallen in its decision is that it submits to
the jurisdiction of a committee to hear claims the question of whether or not the provisions of the
will are to be executed. This, although, it seems to me, is strange upon its face, is precisely what
the court has, in effect, done in its decision; for, if a debt expressly acknowledged in the will and
specifically ordered paid therein, must be submitted to a committee, it means that they may, in
the excercise of their judgment, refuse its payment. This, in turn, means that the provision of the
will in relation thereto is annulled. By this process the committee may, therefore, annul an
express and mandatory provision of a will which is as binding as a provision giving legacy or
making a devise. It is to the probate court, and to it alone, that the law confides the power to
annul and set aside provisions in wills. The executor himself may not do so. And the court itself
may do so only after the very clearest demonstration that the provision violates a positive
provision of law or is against the public policy of the state. In spite of this, it is the decision of
this court that a committee of two or more persons, none of whom is a lawyer, none of whom
may be even a business man, all of whom may be ignorant and inexperienced, may sit in an
informal way, and with all the imperfections inherent in such a tribunal and the practice which
governs its deliberations, may revoke a mandatory provision in the most solemn instrument
known to law. The bare statement of such a proposition is, it seems to me, its clearest refutation.
The fifth fundamental error into which the court has fallen follows naturally. As we have said,
the decision give no significance to the fact that the debt at bar appears acknowledged and
legalized in a last will and testament and that the testator therein solemnly ordered and directed
his executor to pay it. Instead, the decision remands the creditor to the committee in exactly the
same condition as any other creditor. He goes there with the burden of proof on him, with the
necessity of establishing affirmatively and by a fair preponderance of the evidence the existence
of the claim, the consideration therefore, and the fact that it has not been paid. There are laid
upon him the restrictions and limitations imposed by section 383 of the Code of Civil Procedure,
which stop his mouth as a witness under certain conditions. He is there with every burden, with
every restriction upon him under which another creditors labors who has not a scrap of written

evidence to support his claim. It is no adequate reply to say that he can put the will in evidence.
He could do that with any other evidence that he might have. Moreover, that reply is a full
admission of all that I have maintained, that the will is given no significance or value, as such,
but is reduced to the mere function of being evidence to be passed upon by the committee.
Furthermore, it is incumbent upon him to prove that the claim has not been paid and this is the
very point which may be the thing most difficult to establish; and it is in relation to this that the
restrictions and limitations imposed by the section referred to produce their greatest effect. This
certainly cannot be law. It cannot be that the creditor whose debt is recognized as is the one at
bar occupies a position no different from that of a creditor whose debt is not recognized. To
contend the contrary, it seems to me, flies in the face not only of law and justice, but of common
sense as well.
The fact that a debt is mentioned in the will as one not satisfied has, at least, the effect of
changing the burden of proof from the creditor to the estate. Instead of the creditor being
required to establish the validity of the claim and the fact of nonpayment, it is incumbent upon
the estate to show payment affirmatively. At the very least, recognition by the testator in his will
should be given that much significance. The court does not even concede this. The provision
before us, while not a provision for a legacy, has nevertheless the same force and effect; and as a
legatee is not bound to show affirmatively his right to the legacy and as it is the duty of the
executor to seek out the legatee and pay him the legacy, so it is not the duty of the creditor in this
case to show affirmatively his right to the payment of the debt, but it is the duty of the executor,
knowing nothing to the contrary, to seek out the creditor and pay him as the testator has ordered
him to do. If he knows anything to the contrary the burden is on him to demonstrate it.
These considerations naturally lead us to the point so strongly urged in the decision, and which I
regard, for the purpose urged, without force, that the debt may have been paid between the time
of the making of the will and the death of the testator; and that, therefore, it ought not to be paid
by the executor until the question of payment is properly determined. No one is disputing that
proposition. But its admission does not all mean that, to determine whether the claim has been
paid or not, it must be presented to the committee. If it is the duty of the court, through the
executor, to see if the will is conscientiously executed, what more natural, if not absolutely
necessary, than to submit to the court whether the provision recognizing a debt ordering its
payment should be carried out. What argument can be adduced, which does not fly squarely in
the face of reason, to establish the proposition that a court has no business to determine whether
a particular provision of a will shall be carried out or not, when its supreme duty is to require the
punctual and precise execution of the whole will? How can it be maintained that, whether or not
a particular provision in a will shall be carried out must be submitted not to the court, which has
exclusive jurisdiction of the whole will, but to a committee of two or more ignorant and
inexperienced persons? If it is the duty of the court to see that the will is executed as a whole,
then there must go with that duty the power to determine whether a particular provision ordering
the payment of a specific debt shall be executed or not. But the determination of this question is
the determination of the question of payment. Why take from the court, which is the whole body
that has the power to determine whether provisions in wills shall be carried out, the
determination of whether a debt recognized in a particular provision has or has not been paid and
turn it over to a committee such as I have described?

It is thus seen that the proposition given so great weight in the decision, namely, that the debt
should be submitted to the committee in order to determine whether it has bee paid, is without
point or force. The court should make that determination far better than a committee. The
practice leading to the determination by a court as to whether or not a given provision in a will
shall be carried out is very simple, much simpler than is the proceeding before a committee. The
executor finding that the will orders him to pay a certain debt and having no knowledge of his
own that such debt has already been paid, presents his final account to the court, in which he
asserts that he is going to pay the debt in accordance with the provision of the will. Notice is
given to all parties interested in the estate. They appear. If they or any of them know of any
reason why the provision of the will should not be carried out, they may manifest it. Upon that
manifestation a hearing will be had and the court will determine whether or not the provision of
the will has already been executed, in the whole or in part, and upon that determination he will
rest a judgment in which he will order the executor to carry out the provision of the will by the
payment of the debt or he will declare that the provision has already been carried out by
payment. What simpler than this and what more conducive to justice? Who can say that the
submission of the same question to a committee is better than the submission to a court? It might
as well be urged that the legalization of the will, itself were better left to a committee than to a
court; for, if whether or not the provisions of a will are to be carried out must be left to a
committee, then whether it is a will at all or not may as well be left to the same authority.
The attempt of the court to meet the proposition that the will of the testator is the law of the case
does not satisfy my judgment. It is claimed that the will of the testator is not the law of the case
where it is in direct violation of a provision of law; and that the Court of Civil Procedure
requiring that all claims shall be presented to the committee, the testator has no right to except a
particular debt or any debt from the operation of the Code.
In the first place, the Code of Civil Procedure does not require that all claims shall be presented
to the committee. It expressly limits the claims which must be exhibited. In the second place, the
claim that there is anything contradictory between the will of the testator in this particular case
and the provision of the Code of Civil Procedure is, in my judgment, rather fanciful than real.
What is the purpose of requiring the exhibition of a claim to a committee? Simply to save the
estate from being defrauded. There is absolutely no other reason which is behind the law
requiring such a presentation. Is it claimed that a debtor may not pay a claim during his lifetime?
If not, and the will is but a testator speaking after death, may he not pay a debt in that manner? If
the man who is the estate solemnly acknowledges a debt and offers to pay it, who shall say that
the estate is defrauded if the debt be paid? And if the estate is not defrauded, neither the spirit nor
the letter of the law which has for its object the protection of the estate has been violated or
evaded, but has, on the contrary, been fully observed.
I do not discuss or express an opinion relative to the proposition that the statute of nonclaims
runs against a provision of a will, or suggests the results which may follow such doctrine.
The judgment should be reversed and the probate court ordered to hear petitioner's motion of the
21st of November and decide it upon the merits.

G.R. No. 49022

May 31, 1946

Intestate estate of the deceased Consuelo Syyap. FRANCISCO QUISUMBING,

administrator and appellant,
vs.
MARIANO GUISON, claimant and appellee.
Ramon Diokno for appellant.
Paulino J. Sevilla for appellee.
FERIA, J.:
This case is here on appeal from the Court of First Instance of Manila.
The deceased, Consuelo Syyap, during her life time executed a promissory note dated November
9, 1940 for P3,000 in favor of Leonardo Guison payable sixty (60) days from the date thereof,
with interest at the rate of 12 per cent per annum.
The debtor Consuelo Syyap died on November 30, 1940. On December 5 of the same year,
intestate proceedings were instituted and notice given to creditors to file their claim within six
(6) months, which period for filing claims expired on August 31, 1941.
In the inventory filed on April 30, 1941, by the administrator of the estate of the deceased, the
said obligation of P3,000 was acknowledged as one of the liabilities of the decedent.
The creditor Leonardo Guison died on December 31, 1941, and his son Mariano Guison, who
was appointed as administrator of the intestate estate of his deceased father, filed the claim of
P3,000 against the estate on March 9, 1943.
The attorney for the claimant, in his reply to the answer of the attorney for the administrator of
the estate of Consuelo Syyap, stated that the claimant believed in good faith that he was relieved
of the obligation to file a claim with the court, because said administrator had assured him that he
should not worry about it, since the debt was in the inventory and he would pay it as soon as he
was authorized by the court to do so, and that the same administrator had been paying the interest
due on the note up to January, 1943.
The lower court taking into consideration that the appellant administrator did not deny in his
answer to the claim the existence if the debt, that the latter was admitted in the inventory
submitted by said administrator to the court, and that the appellant had been paying interest on
the debt up to January, 1943, allowed the appellees claim and ordered the appellant to pay the

claimant the sum of P3,000 with interest at the rate of 12 per cent per annum from February 1,
1943.
The appellant contends that the court a quo erred or abused its discretion in allowing the
appellees claim under section 2, Rule 87, of the Rules of Court, eighteen months after the
expiration of the time previously limited for the filing of claims, and without a previous
application for extension of time having been filed by the claimant.
While it is true that under section 5 of Rule 87, "all claims for money against the decedent,
arising from contract, express or implied, whether the same be due, not due, or contingent, ...
must be filed within the time limited in the notice," it is also true that, under section 2 of the
same Rule, "at any time before an order of distribution is entered, on application of a creditor,
who has failed to file his claim within the time previously limited, the court may, for cause
shown and on such terms as are equitable, allow such claim to be filed within a time not
exceeding one month.".
There is no question that the claim was filed before the court ordered the distribution of the
estate of the decedent Consuelo Syyap. The only questions to be determined are (1) whether the
claim filed by the claimant may be allowed by the court after hearing both parties, without
necessity on the part of the claimant to file a previous application for, and on the part of the court
to grant, an extension of time not exceeding one month within which the claim may be filed; and
(2) whether cause was shown by the claimant why he did not file the claim within the time
previously limited..
(1) After a careful consideration of this case, we hold that the claim filed by the appellee may be
considered as implying an application for time within which to file said claim, and the order of
the lower court allowing such claim impliedly granted said appellee an extension of time within
which to file said claim. It would have been a waste of time on the part of the court and the
parties in this case, if the court had dismissed the claim and required the appellee to file, first, an
application for a period not exceeding one month within which to file his claim, and then to file
his claim within the time granted by the court, when the latter would allow the claim after all.
Strict compliance with the said requirement of section 2 of Rule 87 would be necessary if a claim
had to be presented to and passed upon by the committee on claims according to the old law; but
now as it is to be filed with and passed upon by the court itself, no harm would be caused to the
adverse party by such a procedure as was followed in the present case.
Moreover, the appellant, in his answer to the claim filed by the appellee, did not object to it on
the ground that the former had not previously applied for an extension of time not exceeding one
month within which to present his claim. It is to be presumed that both the attorneys for the
appellant as well as for the appellee knew that the claim was being filed under the provisions of
section 2, Rule 87, of the Rules of Court, because the time previously limited had then already

expired, and had appellant objected to the claim on the above-mentioned ground and the court
considered it necessary for the appellee to do so, the latter would have complied literally with the
law.
Section 2, Rule 87, of the Rules of Court contains a more liberal provision regarding the time for
the filing of a claim by a creditor who has failed to file his claim within the time previously
limited, than section 690 of the old Code of Civil Procedure on which the rulings in the cases
quoted by the appellant are based.
Under said section 690, the court may, on application of a creditor who has failed to present his
claim, renew the commission and allow further time not exceeding one month for the committee
to examine such claim if the application is filed within six months after the time previously
limited had expired, or if the committee has failed to give the notice required by law, provided
that such application be presented before the final settlement of the estate. So, although the estate
has not yet been finally settled, if such application is filed after six months from the expiration of
the time previously limited, or if the committee has not failed to give the notice required by law,
the court has no power to renew the commission and allow further time not exceeding one month
for the filing and examination by the committee of such claim, whatever might be the cause for
such failure to file the claim in time.
While, under section 2 of Rule 87, there is no limitation as to the time within which a creditor
who has failed to file his claim within the time previously limited, may file an application for
extension of time within which to file his claim, and the court may for cause shown grant such
application fixing a period not exceeding one month for that purpose, provided that the
application is presented before an order of distribution has been entered..
(2) The last sentence of section 2, Rule 87, provides that the court may, for cause shown and on
such terms as are equitable, allow such claim to be filed within a time not exceeding one month.
As it does not state what cause shall be considered sufficient for the purpose, it is clear that it is
left to the discretion of the court to determine the sufficiency thereof; and when the court allows
a claim to be filed for cause or causes which it considers as sufficient, on appeal this court can
not reverse or set aside the action of the court below unless the latter has abused its discretion,
which has not been shown by the appellant in this case. As was held in In re Estate of Tiangco
quoted also by the appellant:
. . . .Whether the period fixed by law for the presentation of claims may be extended is
within the sound discretion of the court, and the decision of the trial judge in this regard
should not be disturbed until it is clearly shown that he abused such discretion. (39 Phil.,
967, 968.)

That nothing is more equitable than what was done by the lower court in this case, is evident.
Appellant does not only acknowledge in the inventory the existence of the debt, but does not
deny it in his answer to the claim filed by the appellee in the court below, and had been paying
interest due thereon up to January, 1943, that is, two months before the filing of the claim.
Attorney for appellant, in opposing the claim and appealing to this court from the decision of the
court below, relies only on the technicality that no previous application for extension of time has
been filed by the claimant-appellee.
Appellant's contention that the admission by the testator in his will of a debt in the case of Santos
vs. Manarang (27 Phil.. 209), quoted by the appellant, is a stronger reason for allowing a claim
than the admission of the decedent's obligation in the inventory filed by the administrator in the
present case, and yet this court denied the claim in said case, is without foundation; because, as
this court said in that case, "the dates of his will and of his death may be separated by a period of
time more or less appreciable. In the meantime, as the testator well knows, he may acquire or
dispose of property, pay or assume additional debts, etc." Besides, it is plain that the ruling in
said case is not applicable to the case at the bar. In that case of Santos vs. Manarang, the claim
was not presented at all to the committee on claims which had to pass upon it according to the
old law, and this court held that the admission of the debt in the testator's will was not a sufficient
reason for the court to allow the creditor's claim which had not been presented to said committee.
While, in the present case, the admission of the existence of the debt in the inventory filed by the
administrator was considered by the court, not as sufficient cause for not filing the appellees
claim at all, but as one of the reasonable causes or reasons for his failure to file it within the time
previously limited.
In view of the foregoing, the decision appealed from is affirmed, with costs against the appellant.
So ordered.
Moran, C. J., Paras, Jaranilla, Pablo, and Briones, JJ., concur.

G.R. No. L-4232

November 7, 1908

FELIX BAUTISTA, plaintiff-appellee,

vs.
AQUILINA TIONGSON, ET AL., defendants-appellants.
A. Velarde for appellants.
C. Reyes for appellee.

TORRES, J.:
By an amended written complaint, dated the 29th of October, 1904, Felix, Bautista, administrator
of the intestate estate of Ciriaco Tiongson, alleged; that the said deceased Ciriaco Tiongson, and
Aquilina Tiongson, were, until the 22d of July, 1901, when the first named died, the owners pro
indiviso of five parcels of land, one of them situated in the place named Tinapayong or Catulinan
in the town of Baliuag, and the other four in Sapang Malaqui, Sapang Munit, Sapang Bagbag and
Maysasa, within the municipality of Hagonoy, and all of them in the Province of Bulacan, their
area, location and boundaries being described in the said complaint; that one-half of the said land
appertained to said intestate estate, and the other half to the defendant, Aquilina Tiongson; the
latter and her husband, Domingo Tomacruz, were the only parties who had administered and
where then administering the aforesaid property, having collected the rentals thereof without
rendering an accounting of their administration to anyone; and that at that time the said property
was not encumbered n favor of any other person; therefore, he prayed the court to order that the
same be partitioned in accordance with the law, and that the defendants be instructed to render an
accounting of their administration and deliver the balance, if any be there be, to the plaintiff.
In view of the foregoing amended complaint, the defendants reproduced their previous answer,
wherein it was set forth that they denied the first paragraph of the complaint, for the reason that,
at the time of the death of Ciriaco Tiongson, the only plot of land held jointly by the latter and by
Aquilina Tiongson was the first of those described in the complaint, because of the four
remaining, the second, third, fourth, and fifth, were owned exclusively by the defendants who
had purchased the same from the late Ciriaco Tiongson, in ignorance of the existence of plot No.
6; that they denied the allegation in paragraph 4, inasmuch as Ciriaco Tiongson, while living,
together with the defendants, administered the undivided lands, and that, after his death, his
widow, Marciana de Zulueta, as the administratrix of the property of her seven minor children,
received that portion of the crops from the land described in paragraph 1 of the complaint
belonging to the intestate estate until the year 1903;
As a special defense they alleged: that the plaintiff lacked the capacity to bring this action
because the legal administration of the property of the late Ciriaco Tiongson, pertained to his
widow who lived with her minor children, acting on behalf of the latter; that, besides the rentals
received by the widow of Ciriaco, she, on several occasions, took from the defendants, on
account of the rentals of the said land, the sum of P1,402.45 pesos, and that the deceased, before
his death, personally owed the defendants the sum of 143,75 pesos; for which reasons they
prayed that the appointment of the administrator of the intestate estate of Ciriaco Tiongson, be
annulled, and that the complaint be dismissed entirely; and, in the event that the said nullity be
not declared, that they be absolved from the complaint except in so far as it relates to the
partition of the land described in paragraph 1 thereof, without prejudice to their claim against the

property of the intestate for the amounts taken by the late Ciriaco and his widow, with the costs
against the plaintiff.
By a writing dated the 31st of October, 1904, Benito Mojica, with permission of the court,
presented a petition of intervention, alleging that he was an owner by virtue of a contract of sale
with pacto de retro clause, entered into the spouses Domingo Tomacruz and Aquilina Tiongson
for a period of three years from November, 1902, of four parcels of rice land situated in Sapang
Malaqui, Sapang Munti, Sapang Bagbag, and Maysasa, in the municipality of Hagonoy, the area,
location and boundaries of which are stated; and having been informed that the plaintiff, Felix
Bautista being aware of the sale with right of redemption, he prayed that, after due process of
law, the request of the partition be denied with the costs.
The case was tried and evidence adduced by the parties whose exhibits were made of record. The
court below entered judgment on the 4th of April, 1907, and allowed the demand interposed by
Felix Bautista as administrator of the intestate estate of Ciriaco Tiongson, and, in consequence
decreed the partition of the property described in the amended complaint, and at the beginning of
the judgment, on the basis that one-half of the said property belonged to Aquilina Tiongson, and
the other half to the intestate estate of Ciriaco Tiongson, as property inherited by the latter and by
the said Aquilina from their late father, Emeterio Tiongson, further ordered that Domingo
Tomacruz should render an accounting of the administration of said property within a period of
fifty days. The petition for intervention presented by Benito Mojica against Felix Bautista with
respect to the rice lands in Sapang Malaqui, Sapang Munti, Sapang Bagbag, and Sapang
Maysasa, above referred to, was dismissed without special ruling as to costs.lawphil.net
The defendants and the intervener, upon being informed of the foregoing decision, excepted
thereto and made unknown their intention to appeal therefrom by a bill of exceptions, and
presented a motion for a new trial because the evidence did not sufficiently justify the decision,
and because the same was contrary to law. The motion for a new trial was overruled; thereupon
the defendants and the intervener excepted to the last ruling in due course, and the said
intervener agreed in writing to the bill of exceptions presented by the defendants, and made it his
own for the purposes of his appeal to this court.
The proceedings instituted by Felix Bautista as administrator of the intestate estate of Ciriaco
Tiongson, wherein he asks for the partition of certain lands which the said deceased and his
sister, Aquilina Tiongson, inherited from their late father, Emeterio Singson, and which they
possessed pro indiviso, are governed by sections 181 to 196 of the Code of Civil Procedure.
No provision of the said sections authorizes an administrator of the property of an intestate to
bring an action demanding the partition of real estate owned pro indiviso by the deceased, whose
property he is administering, and by another person.

In the above cited sections, the law refers to a coparcener, coheir, or other person interested in
the undivided property held, because any one such persons is a real party concerned in the
partition. In cases like the present, where the property is held by a person, not as a coheir but as
the exclusive owner, the right of action for partition, which supposes joint ownership and
community of property, pertains only to the heirs of the late Ciriaco Tiongson, not to the
administrator who, when claiming the division of real estate not included in the inventory, or
which he did not take charge of on commencing to exercise office, but which is alleged to belong
to the estate, is not authorized to represent the intestate succession of the property administered
by him; because the latter, as successors to the deceased, are the only parties who may maintain
such an action for partition of real estate held pro indiviso by coheirs or owners in common. The
matter should be decided in accordance with the provisions contained in the first part of the Code
of Civil Procedure.
Only in the event that one of the parties in interest were a minor, could he be represented by his
guardian, tutor or curator ad litem, with the court's approval, to institute an action for the
partition of the property or appear therein, under the provisions of section 195 of the said code.
It is to be noted that in dealing with the partition of property, the law mentions the personality of
the guardian or curator who represents a minor, but no mention is made of the executor or
administrator, inasmuch as the partition of property which, as a matter of fact, does not form a
part of the inheritance, can not be regulated by the sections of the Code of Civil Procedure which
refer to special proceedings in connection with testate or intestate estates, but by those of the
chapter on partition of real property.
With regard to the rendering of accounts, the demand therefore presupposes that the action for
partition brought by the administrator was in accordance with the law and that the same could be
granted by the court below; once the latter is dismissed, it follows that the former should
likewise be denied.
Therefore, it is our opinion that the judgment appealed from should be and is hereby reversed,
and that the administrator of the intestate estate of Ciriaco Tiongson has no right to bring an
action claiming the partition of real estate on the ground that one moiety of the same belongs to
the estate of the deceased. No special ruling is made as to the costs in either instance. So ordered.
Arellano, C.J., Mapa, Carson, Willard and Tracey, JJ., concur.

G.R. No. L-7075

March 25, 1912

RODRIGO ALBANO, administrator of the estate of the deceased Silverio Agtarap,

plaintiff-appellee,
vs.
CORNELIO AGTARAP, ET AL., plaintiffs-appellants.
A. Adiarte for appellants.
I. Bitanga for appellee.
ARELLANO, C.J.:
Lucio Agtarap owned several parcels of agricultural land in Laoag, Province of Ilocos Norte, and
at his death left four sons, one of whom, Silverio, died on the 10th of September, 1907.
Upon the death of Silverio Agtarap, his widow, Juana Domingo, began special proceedings for
settlement of the intestate estate of her deceased husband by petitioning for an administrator and
Rodrigo Albano was appointed.
As such administrator Rodrigo Albano instituted a civil action improperly entitled "in the matter
of the claim for the widow's legal portion" against the other three heirs of Lucio Agtarap, who
are the two sons of his, called Cornelio and Nicolas and a grandson named Melecio Agtarap;
improperly so entitled, because in the present civil action the matter involved is a claim in favor
of the intestate estate to certain property belonging to the decedent, against the three heirs of the
said Lucio Agtarap, who have taken themselves all the estate left by the latter, including the
fourth part which belongs to Silverio Agtarap, likewise a son of Lucio Agtarap. Therefore the
subject matter of this action can only be this coownership, if it exists, in which the hereditary
estate was left, and, if it does so exist, the partition of the property among the four lawful
coowners, the heirs of Lucio Agtarap, and withdrawal of Silverio's portion in order to transfer it
to his intestate estate.
The following are pertinent facts in this case: (1) It is proven that Lucio Agtarap is the legitimate
father of Silverio, Cornelio, and Nicolas Agtarap and the grandfather of Melecio Agtarap, (2) it is
admitted that Lucio Agtarap died leaving property; (3) it is proven that the property left as his
death by Lucio Agtarap has been seized by his said descendants, now the defendants, without
giving Silverio his share; (4) it is proven that, at least, the property described in Exhibits B, C, D,
E, F, G, H and I was left by Lucio Agtarap.
According to law, one-fourth of this property belongs to Silverio Agtarap.
The judgment of the court below directs:
That one-fourth part of this property be delivered to the administrator of the intestate
estate of the late Silverio Agtarap, as his legacy, so that, after proper proceedings, their
respective portion may be adjudicated to the widow and other heirs of the said Silverio;
without special finding as to costs.
This judgment is entirely in accordance with law.

The plaintiff also asked for the portion of the products of the coownership corresponding to
Silverio Agtarap, but the trial court ignored this request, as well as that for some cattle included
in the complaint, and that the plaintiff has not appealed with regard to this omission, so it need
not be considered here.
The judgment rightly says that after the proper proceedings under the law, there may be
adjudicated to the widow and other heirs of Silverio Agtarap, in due-proportion, the fourth part
which the defendants should deliver to the administrator of the intestate estate of the said
Silverio Agtarap; but not in this action. The necessary procedure will be the special proceedings
in the intestate estate of Silverio Agtarap, in which may properly be presented the claim of the
administrator of the said intestate estate on behalf of Juana Domingo for her legal portion as
widow," as well as the proceedings for proving that Eugenia Agtarap is a legitimate daughter in
order to have her declared the sole heir of the whole of the said fourth part of the property which
corresponds to him whom she calls her legitimate father. In the trial held for such purpose it will
be determined who are the heirs of the intestate estate of Silverio Agtarap; whether she who calls
herself his legitimate daughter, Eugenia Agtarap; or his brother Cornelio and Nicolas and his
nephew Melecio, all surnamed Agtarap.
The lawful usufruct pertaining to the widow will depend upon whether the alleged daughter or
the brothers and nephew of the deceased are entitled to the inheritance, for if she who claims to
be the daughter, Eugenia Agtarap be declared the sole heir of the deceased Silverio Agtarap, the
widow's share would be different from what it would if the defendants in this case, as brothers
and nephew of the deceased Silverio Agtarap, are declared to be the sole heirs-in accordance
with the various provisions of the Civil Code in this respect.
Only in such special proceedings, wherein the necessary orders can be issued and executed, can
findings be made as to who are the heirs and what the portions belong to them, the nature of their
titles, and in case of usufruct what part pertains to each.
The judgment appealed from is affirmed, with the costs of this instance against the appellants.
Torres, Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions
MORELAND, J., dissenting:
The real estate which constitutes the subject matter of this action descended, on the death of
Lucio Agtarap, to four heirs Silverio, Cornelio, Nicolas, and Melecio, whose interests are herein
litigation. Later Silverio died, leaving, it is claimed, a wife and child. There were no debts. No
one was in any sense interested in the property save the heirs. The property was never divided
among the heirs.

It is asserted, as the sole reason for the appointment of an administrator and the maintenance of
this action, that three of the heirs are in the possession of the lands in question and are excluding
the other alleged heirs, Eugenia and her mother, Juana Domingo, the alleged widow of Silverio,
from participation therein. The nature if this action is stated by the court thus:
Therefore the sole basis of this action is this joint ownership, if it exists, in which the
estate was left and, if it is true, the division of the property among the four joint legal
owners, heirs of Lucio Agtarap, setting apart the portion belonging to Silverio for his
estate.
The judgment of the court below, as stated by this court, was:
That one-fourth part of this property (real estate) be delivered to the administrator of the
intestate estate of the late Silverio Agtarap as heirs, so that, upon proper proceedings,
there may be adjudicated to the widow and the heirs of the said Silverio their respective
portions.
As to this judgment of the trial court, this court in its opinion says:
This judgment is entirely in accordance with law.
We have here, then, the principle asserted that an administrator has power to commence and
prosecute an action of partition of real estate among the heirs of the decedent. In this case we
have the administrator of one heir suing the other three heirs for a one-quarter interest, and the
judgment of the trial court, affirmed by this court, giving the administrator the one-fourth part
sued for and ordering its delivery by the defendants. This court says that this is not a suit in
ejectment to recover all of the premises pending a settlement of the estate. Nor, says the court, is
it an action to obtain possession of a one-fourth part already set off. The ownership of the heirs is
that of tenants in common. The property has never been divided. Neither is it, under the holding
of this court, an action to compel the defendants to permit participation of the other heir in the
possession in common. The decision of the court indisputably negatives such a theory. The court
clearly holds the action to be one of the partition.
I repeat, then, that this court, by the opinion I am criticising, asserts the proposition that an
administrator of an estate may commence and prosecute an action of partition and compel a
division of the real estate of his decedent among the heirs. So far as my researches go, this is the
first time that such a proposition has been asserted by any court. Even among the States which
have, by statute, gone to extremes in giving administrators control over real estate, no legislature
or court has ever given such power or right except those of Louisiana, and then only in specified
cases. (44 La. Ann., 51; 107 La., 140) (Philips vs. Doris, 56 Neb., 293; Whitlock vs. Willard, 18
Fla., 156; Greeley vs. Hendricks, 23 Fla., 366; Hunter vs. Stoneburner, 92 Ill., 75; Nason vs.
Willard, 2 Mass., 478; Jones vs. Smith, 31 S. C., 527; 58 Miss., 198.) Mr. Freeman, in his article
on Partition in the Cyclopedia of Law and Procedure (vol. 30, p. 198.) says:
By the common law executors and administrators acquired a qualified title to the personal
property of the decedent, and, when his interest therein was that of a cotenant, must have

been authorized to compel partition. As to real property, neither at common law nor under
any statute does an executor or administrator take any title . . . . Neither can compel
partition, in the absence of a statute authorizing it.
In the American and English Encyclopedia of Law (vol. 21, pp. 1155 and 1156) appears this
statement of the law;
In the absence of statutory authority thereof, the executor or administrator of one who
owned an undivided interest in real estate has not, merely by reason of such office, such
title to decedent's realty as will authorize the maintenance of an action of partition.
Crosswell, in his work on Executors and Administrators (pp. 207 and 208), speaking of an
executor or administrator, says:
In the lands and other real property of the decedent he has no interest, as a general rule,
except so far as may be given to him by the statute, or in case of an executor, by the will
of the deceased.
So far as I can ascertain, nowhere in the law of these Islands is an administrator given power to
bring an action for the partition of real estate. The persons and the only persons authorized to
bring such an action are those mentioned in section 181 of the Code of Civil Procedure. It reads:
Partition of real estate. A person having or holding real estate with others, in any form of
joint tenancy, or tenancy in common, may compel partition thereof in the manner
hereinafter prescribed.
From the provisions of the Code of Civil Procedure relating to the partition of real estate it is
apparent that partition on the petition of an administrator was never contemplated.
Article 1052 of the Civil Code reads as follows:
Every coheir having the free administration and disposal of his property may at any time
request the division of the estate.
The legal representatives of incapacitated persons and absentees must request the division
in their name.
Articles 1058 and 1059 are as follows:
Should the testator not have made any division, nor intrusted this power to another, if the
heirs should be of age and should have the free administration of their property, they may
distribute the estate in the manner they may see fit.
If the heirs of age should not agree as to the manner of making the division, they shall be
free to enforce their rights in the manner prescribed in the law of civil procedure.

The Civil Code does not authorize such an action as the present.
It is evident, then, that the present action of partition was instituted without authority of law, was
not begun by the real party in interest, and was commenced and carried on without the consent of
some of real parties in interest. A judgment in a partition action in which one of the real persons
in interest is not a party is substantially fruitless. (59 L.R.A., 748.)
But, to me, this is not the strangest part of this decision. It seems to me to hold finally, in effect,
that this action and after the judgment therein is of no significance anyway; that, after the action
has been begun, the parties and witnesses in court, the cause tried, and the judgment rendered,
nothing of any consequence has been accomplished. It either holds this, or else it holds
something, to me, more incomprehensible, to which I shall call attention as my third and last
objection to the decision as it stands. The court says:
After the proper proceedings under the law, let there be adjudicated to the widow and the
heirs of Silverio Agtarap, in proper portions, the fourth part which the defendants should
deliver to the administrator of the intestate estate of said Silverio Agtarap; but not in this
action (sic). The necessary prior proceedings will occur in the special proceedings of the
intestate estate of Silverio Agtarap in which will be proper the claim made by the
administrator of the said estate on behalf of Juana Domingo for her "legal portion," and
also the proceedings for the filiation of Eugenia Agtarap and to have her declared the
universal heir of the whole of the said fourth part which corresponds to the person she
calls her legitimate father. Therein it will be determined, on the hearing of that matter,
who are the heirs of the intestate estate of Silverio Agtarap, and whether the person
denominated the legitimate daughter, Eugenia Agtarap, is the heir, or whether the brothers
of Silverio Agtarap, namely, Cornelio Nicolas and his nephew Melecio, all of the
surname Agtarap, are the heirs. And when it is shown whether the said pretended
daughter, or the brother and nephew of the deceased, are entitled to the property, then the
lawful usufruct of the widow will appear. If the alleged daughter were declared the
universal heir of the deceased Silverio Agtarap, a certain portion would go to the widow,
while her share would be different if the defendants, as brothers and nephew of Silverio,
are declared to be the universal heirs in accordance with the various provisions of the
Civil Code. Only in such special proceedings can the necessary orders be given and
carried out and the conclusions be reached as to the heirs and their shares and what part
corresponds to each.
From this quotation it is clear that, notwithstanding this solemn adjudication, no one knows what
is going to happen until further proceedings are had in the probate court, for, says the opinion:
Only in such special proceedings can the necessary orders be given and carried out and
the conclusions be reached as to the heirs and their shares and what part responds to
each.
If this is so, what was the use of bringing the present action and what part does the formal
judgment of this court play in the matter? If there must be "further proceedings" in a different
court to determine who the heirs are, how many there are, and what their shares are, can only one

explain what possible consequence can be attached to this action and to the judgment of this or
the trial court herein? It the trial court was incompetent to determine in this action the very thing
for which the action was brought, and the decision of this and the trial court expressly says the
only probate court can determine it, what was the purpose in bringing this action? Of what
efficacy is the decision of the trial court therein and what is the purpose of the solemn judgment
of this court in the premises? If the whole essence of the case must still go to the probate court to
be determined, as the decision says it must, what unless labor have we incurred and what fatuous
judgment have we rendered? If what the court says in its own decision is true, then its own
decision is without effect or consequence.
But even this is not the strangest part of this decision, as it appears to me. If it has any force or
effect whatever, than we have this court holding that an action partitioning real estate may be
begun in one court and terminated in another; that while one court directs the proceedings and
finds the facts, another declares the judgment on what may be altogether different facts; that
while the probate court is ordered to take the evidence and determine therefrom the facts and the
law applicable thereto, such proceeding is without result because this court has already found the
facts, applied the law and prejudged the case.
In demonstration of the foregoing I present again the quotation above made from the decision of
this court. The decision says:
The judgment in the court below is: "That one-fourth part of this property be delivered to
the administrator of the intestate estate of the late Silverio Agtarap as heir, so that, upon
proper proceedings, there may be adjudicated to the widow and heirs of said Silverio
their respective portions. Without finding as to costs." This judgment is entirely in
accordance with law.
It is evident that this court, then, adjudicates to the alleged widow and heir of Silverio, as well as
he administrator in this case, one-fourth of the land in question, and this although the alleged
widow and heir are not, so far as appears in the decision, parties to the action. The court then
states that the probate court is the only court which is competent to determine whether or not the
woman who claims to be the wife of wife Silverio is really such and whether the person who
claims to be the heir of Silverio is in fact his heir, saying that such court is the only tribunal in
which "the conclusions can be reached as to the heirs and their shares and what part corresponds
to each." It further states that:
When it is shown whether the said pretended daughter, or brothers and the nephew of the
deceased, are entitled to the property, then the lawful usufruct of the widow will appear.
If the alleged daughter were declared the universal heir of the deceased Silverio Agtarap,
a certain portion would go to the widow, while her share would be different if the
defendants, as brothers and nephew of the said Silverio, are declared to be the universal
heirs . . . .
Observe the situation. This court asserts, in the quoted part of this decision, (1) that neither it nor
the trial court has any power to determine in this action, or in any other, who are the heirs of
Silverio, and yet it has decreed a one-fourth interest to the widow and heir of Silverio. It also

holds (2) that the probate court is the only court which can determine who the heirs are and what
their shares are, it being the only court which has jurisdiction or power to make a declaration of
heirship; and yet this court has found and declared the heirs and made an adjudication as to
their shares. It holds that this court has no power to do anything in this action and yet does
everything which any court could possibly do. All power to act in the premises is, by the opinion,
turned over to the probate court, and yet this court forecloses its action by making an
adjudication in the shape of a final judgment stating who the heirs are and awarding them their
shares. So that no matter what the probate court finds, as to the facts or the law, it has no power
to act, as the prior judgment of this court finding the heirs and adjudicating the shares is
conclusive upon it. To illustrate: The probate court is ordered by this court to take evidence and
determine whether the alleged heir of Silverio is really such or not. Now, if the pretended heir is
found to be illigitimate, that fact may demonstrate also that the deceased and the alleged widow
were never married and that she is, therefore, not his widow. But if their is neither widow nor
child, then the brothers and nephew of Silverio are entitled to the whole property. But this court,
affirming the decision of the court below, has already decreed that Silverio's alleged widow and
child are entitled to a one-fourth share in said land and has decreed its delivery to the
administrator for them. If that decision is effective, then the probate court is bound by it, and his
proceeding for the declaration of heirship and the adjudication of the shares to the heirs is a
farce, as, no matter what he may find, he can adjudicate nothing different from what this court
has already determined by final judgment. No matter if the probate court found that the alleged
widow was no widow and the alleged heir no heir and that, therefore, Cornelio, Nicolas and
Melecio were entitled to all of the property, such court is utterly powerless to grant them all the
property, for their stares him in the face always the final judgment of this court awarding them
only three-quarters.
In its decision the trial court found:
That Eugenia Agtarap is the legitimate daughter of the lawful marriage of Silverio
Agtarap and Juana Domingo, such fact appearing in the baptismal record made in the
year 1892 and not attacked by anybody from that day to this; and whose force and effect
cannot be destroyed by the testimony of the witnesses for the defense to the effect that
said Eugenia is not the daughter of said spouses but of other persons.
The trial court further says that:
With the death of Lucio Agtarap the following persons became heirs in equal parts of his
property: Cornelio and Nicolas, being sons, by their own right, and Melecio and Eugenia
by representation, they being grandchildren.
Then follows the judgment of the court ordering the delivery of a one-fourth part of the lands to
the administrator, not to Eugenia. This court in the judgment of affirmance says, as we have
already seen, that the one-fourth part is turned over to the administrator for the purpose of having
the probate court, which, says this court, is the only court competent for that purpose, proceed
and determine whether Juana Domingo was the lawful wife of Silverio, a fact already determined
by the court below in this case and affirmed by this court, and whether Eugenia is his lawful
child, a fact also already determined by this very case by the court below and affirmed by this

court. The proceeding in the probate court is ordered to the end that the rights of the parties in the
property may be determined and their respective shares adjudicated to each, things already done
by two courts. Two courts have already adjudicated a one-fourth part of the lands to the
administrator for the use of Eugenia and the widow, and the ordered its delivery to the
administrator. How can the probate court possibly effect these two decisions, especially the final
judgment of this court, even though he find that Juana and Silverio were never married, that their
relations were adulterous, scandalous and criminal, and that Eugenia is illegitimate, and neither
the one nor the other has the slightest interest in the lands of Silverio, but that such lands belong
wholly to Cornelio, Nicolas and Melecio? How can he reverse the final judgment of this court
which definitely holds and adjudicates, in terms, that Cornelio, Nicolas and Melecio are entitled
to only three-quarters, Eugenia taking the other quarter?
The proposition laid down in this decision relative to the probate court being the only court
competent to declare heirship (a proposition which, by the way, reestablishes the old system of
the declaration of heirship), that is, to determine in given case who the heirs are and what their
shares in property are, is, in my judgment, untenable.
It is evident that there appears in this case no reason whatever why an administrator should have
been appointed. As I have said, there was not debt outstanding against the estate and the estate
held no claim against anyone. No one was interested in the real estate except the heirs. An action
of partition between the heirs themselves, or an action by one heir against the others to compel
participation in possession, would have been the proper proceeding. The appointment of an
administrator under such circumstances was without authority of law, was unnecessary, entailed
a useless expense, and served no purpose. The cases which come before this court demonstrate to
my satisfaction that the power of the court to appoint administrators is made use of far too often.
An administrator should never be appointed unless there is some third person to whom the estate
is indebted or the who is indebted to the estate; and even in such case the appointment should be
made only after every effort has been made to adjust the matter without such appointment. Under
the law an administrator should not be appointed just because some one asks for the
appointment. Where there is no controversy except among the heirs themselves, an administrator
should not be appointed. Heirs who do not agree have their remedy, one against the other, in the
ordinary actions or proceedings provided by law. Where the appointment of an administrator is
asked for under such circumstances, it is the duty of the court to deny the application and advise
the applicant that he has a remedy entirely adequate under other provisions of the law. An
administrator is not the representative of one set of heirs as against another nor of the heirs as a
whole.

G.R. No. 2057

April 29, 1905

THE UNITED STATES, plaintiff-appellee,

vs.
ADRIANO CONCEPCION, defendant-appellant.

Alfredo Chicote for appellant.

Office of the Solicitor-General Araneta for appellee.
CARSON, J.:
Adriano Concepcion, the appellant in this case, was convicted of the crime of brigandage in the
Court of First Instance of Surigao and sentenced to death and to the payment of one-half of the
costs of the trial.
We find no error in the proceedings prejudicial to the rights of the accused, and the evidence
adduced at the trial sustains the findings of the trial court and establishes the guilt of the
appellant beyond a reasonable doubt.
It was proven that the accused, Adriano Concepcion, organized the band of dangerous and
desperate brigands of which he was a member, and was accepted and recognized by the said
band as its chief; and further that he took a direct part in the killing of one Lewis Clark, a
Constabulary officer, on the 23d of March, 1903, when the said band attacked and robbed the
Constabulary quarters in the town of Surigao.
The sentence of the trial court should be, and is hereby, affirmed, with the costs of this appeal
against the appellant. So ordered.
Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.

G.R. No. 121597

June 29, 2001

PHILIPPINE NATIONAL BANK, petitioner,

vs.
HON. COURT OF APPEALS, ALLAN M. CHUA as Special Administrator of the Intestate
Estate of the late ANTONIO M. CHUA and Mrs. ASUNCION M. CHUA, respondents.
QUISUMBING, J.:
This petition assails the decision1 of the Court of Appeals dated July 25, 1995 in CA-G.R. CV
No. 36546, affirming the decision dated September 4, 1991 of the Regional Trial Court of
Balayan, Batangas, Branch 10 in Civil Case No. 1988.
The facts, as found by the trial court and by the Court of Appeals, are not disputed.

The spouses Antonio M. Chua and Asuncion M. Chua were the owners of a parcel of land
covered by Transfer Certificate of Title No. P-142 and registered in their names. Upon Antonios
death, the probate court appointed his son, private respondent Allan M. Chua, special
administrator of Antonios intestate estate. The court also authorized Allan to obtain a loan
accommodation of five hundred fifty thousand (P550,000.00) pesos from petitioner Philippine
National Bank to be secured by a real estate mortgage over the above-mentioned parcel of land.
On June 29, 1989, Allan obtained a loan of P450,000.00 from petitioner PNB evidenced by a
promissory note, payable on June 29, 1990, with interest at 18.8 percent per annum. To secure
the loan, Allan executed a deed of real estate mortgage on the aforesaid parcel of land.
On December 27, 1990, for failure to pay the loan in full, the bank extrajudicially foreclosed the
real estate mortgage, through the Ex-Officio Sheriff, who conducted a public auction of the
mortgaged property pursuant to the authority provided for in the deed of real estate mortgage.
During the auction, PNB was the highest bidder with a bid price P306,360.00. Since PNBs total
claim as of the date of the auction sale was P679,185.63, the loan had a payable balance of
P372,825.63. To claim this deficiency, PNB instituted an action with the RTC, Balayan,
Batangas, Branch 10, docketed as Civil Case No. 1988, against both Mrs. Asuncion M. Chua and
Allan Chua in his capacity as special administrator of his fathers intestate estate.
Despite summons duly served, private respondents did not answer the complaint. The trial court
declared them in default and received evidence ex parte.
On September 4, 1991, the RTC rendered its decision, ordering the dismissal of PNBs
complaint.2
On appeal, the Court of Appeals affirmed the RTC decision by dismissing PNBs appeal for lack
of merit.3
Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court.
Petitioner cites two grounds:
I
THE CA ERRED IN HOLDING THAT PNB CAN NO LONGER PURSUE ITS
DEFICIENCY CLAIM AGAINST THE ESTATE OF DECEASED ANTONIO M.
CHUA, HAVING ELECTED ONE OF ITS ALTERNATIVE RIGHT PURSUANT TO
SECTION 7 RULE 86 OF THE RULES OF COURT DESPITE A SPECIAL
ENACTMENT (ACT. NO. 3135) COVERING EXTRAJUDICIAL FORECLOSURE
SALE ALLOWING RECOURSE FOR A DEFICIENCY CLAIM AS SUPPORTED BY
CONTEMPORARY JURISPRUDENCE.

II
THE CA ERRED IN HOLDING THAT ALLAN M. CHUA, AS SPECIAL
ADMINISTRATOR OF THE INTESTATE ESTATE OF HIS DECEASED FATHER
ANTONIO M. CHUA ON ONE HAND, AND HIM AND HIS MOTHER ASUNCION
CHUA AS HEIRS ON THE OTHER HAND ARE NO LONGER LIABLE FOR THE
DEBTS OF THE ESTATE.4
The primary issue posed before us is whether or not it was error for the Court of Appeals to rule
that petitioner may no longer pursue by civil action the recovery of the balance of indebtedness
after having foreclosed the property securing the same. A resolution of this issue will also resolve
the secondary issue concerning any further liability of respondents and of the decedents estate.
Petitioner contends that under prevailing jurisprudence, when the proceeds of the sale are
insufficient to pay the debt, the mortgagee has the right to recover the deficiency from the
debtor.5 It also contends that Act 3135, otherwise known as "An Act to Regulate the Sale of
Property under Special Powers Inserted in or Annexed to Real Estate Mortgages," is the law
applicable to this case of foreclosure sale and not Section 7 of Rule 86 of the Revised Rules of
Court6 as held by the Court of Appeals.7
Private respondents argue that having chosen the remedy of extrajudicial foreclosure of the
mortgaged property of the deceased, petitioner is precluded from pursuing its deficiency claim
against the estate of Antonio M. Chua. This they say is pursuant to Section 7, Rule 86 of the
Rules of Court, which states that:
Sec. 7. Rule 86. Mortgage debt due from estate. A creditor holding a claim against the
deceased secured by mortgage or other collateral security, may abandon the security and
prosecute his claim in the manner provided in this rule, and share in the general
distribution of the assets of the estate; or he may foreclose his mortgage or realize upon
his security, by action in court, making the executor or administrator a party defendant,
and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the
property pledged, in the foreclosure or other proceeding to realize upon the security, he
may claim his deficiency judgment in the manner provided in the preceding section; or he
may rely upon his mortgage or other security alone and foreclose the same at any time
within the period of the statute of limitations, and in that event he shall not be admitted
as a creditor, and shall receive no share in the distribution of the other assets of the
estate; but nothing herein contained shall prohibit the executor or administrator from
redeeming the property mortgaged or pledged by paying the debt for which it is hold as
security, under the direction of the court if the court shall adjudge it to be for the interest
of the estate that such redemption shall be made.

Pertinent to the issue at bar, according to petitioner, are our decisions he cited.8 Prudential Bank
v. Martinez, 189 SCRA 612, 615 (1990), is particularly cited by petitioner as precedent for
holding that in extrajudicial foreclosure of mortgage, when the proceeds of the sale are
insufficient to pay the debt, the mortgagee has the right to recover the deficiency from the
mortgagor.
However, it must be pointed out that petitioners cited cases involve ordinary debts secured by a
mortgage. The case at bar, we must stress, involves a foreclosure of mortgage arising out of a
settlement of estate, wherein the administrator mortgaged a property belonging to the estate of
the decedent, pursuant to an authority given by the probate court. As the Court of Appeals
correctly stated, the Rules of Court on Special Proceedings comes into play decisively.
To begin with, it is clear from the text of Section 7, Rule 89, that once the deed of real estate
mortgage is recorded in the proper Registry of Deeds, together with the corresponding court
order authorizing the administrator to mortgage the property, said deed shall be valid as if it has
been executed by the deceased himself. Section 7 provides in part:
Sec. 7. Rule 89. Regulations for granting authority to sell, mortgage, or otherwise
encumber estate The court having jurisdiction of the estate of the deceased may
authorize the executor or administrator to sell personal estate, or to sell, mortgage, or
otherwise encumber real estate, in cases provided by these rules when it appears
necessary or beneficial under the following regulations:
xxx
(f) There shall be recorded in the registry of deeds of the province in which the real estate
thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of
the court, together with the deed of the executor or administrator for such real estate,
which shall be valid as if the deed had been executed by the deceased in his lifetime.
In the present case, it is undisputed that the conditions under the aforecited rule have been
complied with. It follows that we must consider Sec. 7 of Rule 86, appropriately applicable to the
controversy at hand.
Case law now holds that this rule grants to the mortgagee three distinct, independent and
mutually exclusive remedies that can be alternatively pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an
ordinary claim;

(2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim;
and
(3) to rely on the mortgage exclusively, foreclosing the same at any time before it is
barred by prescription without right to file a claim for any deficiency.9
In Perez v. Philippine National Bank,10 reversing Pasno vs. Ravina,11 we held:
The ruling in Pasno vs. Ravina not having been reiterated in any other case, we have
carefully reexamined the same, and after mature deliberation have reached the conclusion
that the dissenting opinion is more in conformity with reason and law. Of the three
alternative courses that section 7, Rule 87 (now Rule 86), offers the mortgage creditor, to
wit, (1) to waive the mortgage and claim the entire debt from the estate of the mortgagor
as an ordinary claim; (2) foreclose the mortgage judicially and prove any deficiency as an
ordinary claim; and (3) to rely on the mortgage exclusively, foreclosing the same at any
time before it is barred by prescription, without right to file a claim for any deficiency, the
majority opinion in Pasno vs. Ravina, in requiring a judicial foreclosure, virtually wipes
out the third alternative conceded by the Rules to the mortgage creditor, and which would
precisely include extra-judicial foreclosures by contrast with the second alternative.
The plain result of adopting the last mode of foreclosure is that the creditor waives his right to
recover any deficiency from the estate.12 Following the Perez ruling that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial foreclosure is that the creditor waives
any further deficiency claim. The dissent in Pasno, as adopted in Perez, supports this conclusion,
thus:
When account is further taken of the fact that a creditor who elects to foreclose by
extrajudicial sale waives all right to recover against the estate of the deceased debtor for
any deficiency remaining unpaid after the sale it will be readily seen that the decision in
this case (referring to the majority opinion) will impose a burden upon the estates of
deceased persons who have mortgaged real property for the security of debts, without any
compensatory advantage.
Clearly, in our view, petitioner herein has chosen the mortgage-creditors option of
extrajudicially foreclosing the mortgaged property of the Chuas. This choice now bars any
subsequent deficiency claim against the estate of the deceased, Antonio M. Chua. Petitioner may
no longer avail of the complaint for the recovery of the balance of indebtedness against said
estate, after petitioner foreclosed the property securing the mortgage in its favor. It follows that
in this case no further liability remains on the part of respondents and the late Antonio M. Chuas
estate.

WHEREFORE, finding no reversible error committed by respondent Court of Appeals, the

instant petition is hereby DENIED. The assailed decision of the Court of Appeals in CA-G.R.
CV No. 36546 is AFFIRMED. Costs against petitioner.1wphi1.nt
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

G.R. No. 18405

September 23, 1922

E. GASKELL & CO., INC., plaintiff-appellant,

vs.
TAN SIT, administratrix of the estate of Dy Poco, deceased, defendant-appellee.
Williams & Ferrier for appellant.
Crossfield & O'Brien for appellee.
STREET, J.:
On June 23, 1919, a Chinese merchant of the city of Manila, Dy Poco by name, was declared
bankrupt in a proceeding instituted by some of his creditors in the Court of First Instance of
Manila, and short thereafter the same Dy Poco died. Nevertheless, the insolvency proceedings
continued their course and in the end an order was made discharging the debtor or his estate
from all liability upon provable claims, as contemplated in section 69 of the Insolvency Law
(Act No. 1956). Meanwhile, however, Tan Sit, the widow of Dy Poco, had qualified as his
administratrix, for the purpose chiefly, no doubt, of realizing upon a policy of insurance of
P25,000 in force upon the life of Dy Poco at the time of his death. In this she was successful, as
may be seen by referring to an opinion in Sun Life Assurance Co. of Canada vs. Ingersoll and
Tan Sit (42 Phil., 331). As a result of the facts above indicated, two distinct parallel proceedings
with reference to the estate of Dy Poco were contemporaneously conducted in the Court of First
Instance of the city of Manila, that is to say, the proceedings over the estate in insolvency and the
proceedings over the estate in insolvency and the proceedings over the estate in administration.
Prior to the institution of the bankruptcy proceeding above alluded to, Gaskell & Co., the
plaintiff herein, as customs broker for Dy Poco, joined wit the latter in a written application to
the Philippine Guaranty Co., requesting said company to become surety on a bond which the
Insular Collector of Customs had required Dy Poco to give inorder to secure the delivery of
certain merchandise arriving from abroad for which Dy Poco was at that time unable to produce

the proper bill of lading. Pursuant to said application the Philippine Guaranty Company executed
a bond in the sum of P19,800, and merchandise having a value of P18,338.48 was thereupon
delivered to Dy Poco by the Collector of Customs.
At a later date Dy Poco defaulted in his undertaking to produce the bill of lading corresponding
to the merchandise which had been delivered to him, and said document was afterwards
produced by the Hongkong & Shanghai Banking Corporation, an innocent holder thereof for
value; and demand was made by this bank upon the Insular Collector of Customs for the delivery
of the same merchandise that had previously been delivered to Dy Poco. When this occurred, the
Collector at once made demand upon the Philippine Guaranty Company for payment of the value
of the goods (P18,338.48) for the benefit of the aforesaid bank.
In response to this demand, the Guaranty Company paid the amount required, and in turn
demanded reimbursement from the present plaintiff, Gaskell & Co., in reliance upon the
obligation assumed by the latter in the written application submitted to the Guaranty Company
when the latter assumed responsibility as surety for Dy Poco. Up to the time when this action
was brought, Gaskell & co. had not complied with this demand of the Guaranty Company, but no
question is made as to Gaskell & Company's ultimate liability.
Upon the preceding statement it is evident that the Philippine Guaranty Company, having paid
out a sum of money in the character of surety for Dy Poco, had a right to be exonerated by the
latter; and accordingly said company duly proved this claim in the insolvency proceeding that
had been instituted against Dy Poco.
It will also be noted that Dy Poco was also contingently liable to exonerate Gaskell & Co. in the
even that the latter should be compelled to pay out anything to the Philippine Guaranty
Company; for it is undisputed that, as between Gaskell & Co. and Dy Poco, the latter was
primarily responsible. No steps were taken, however, towards proving this contingent claim on
the part of Gaskell & Co. against Dy Poco in the insolvency proceedigns. At a later date,
however, Gaskell & Co. caused said claim to be presented to the commissioners appointed to
pass on claims against the estate of Dy Poco in administration; and the same having been
rejected by the commissioners, the matter was brought before the Court of First Instance upon
appeal, where the claim was again disallowed. Upon this Gaskell & Co. appealed to the Supreme
Court.
The errors assigned all have relation to the right of the appellant to have this claim allowed
against the estate of Dy Poco in administration; and the first point upon which the attorneys for
the appellant lay stress is that this claim against Dy Poco is a contingent claim, from which it is
supposed to follow that it should have been reported by the commissioners to the court having
charge of the administration proceedings as contemplated in section 746 of the Code of Civil

Procedure, whereupon it would have become the duty of the court to order the administratrix to
retain funds to satisfy the claim upon its becoming absolute (sec. 747).
There can be no question that the claim of Gaskell & Co against Dy Poco is properly designated
as a contingent claim, which may be defined as a claim in which liability depends on some future
event that may or may not happen, and which makes it uncertain whether there will ever be any
liability. The expression is used in contradistinction to the absolute claim, which is subject to no
contingency and may be proved an allowed as a debt by the committee or claims. The absolute
claim is such a claim as, if contested between living persons, would be proper subject of
immediate legal action and would supply a basis of a judgment for a sum certain. It will be noted
that the term "contingent" has reference to the uncertainty of the liability and not to the
uncertainty in which the realization or collection of the claim may be involved. The word
"contingent," as used in the original English, in the Code of Civil Procedure, conveys the idea of
ultimate uncertainty as to the happening of the event upon which liability will arise; and it is not
the prices equivalent of the Spanish word "eventual" by which it is commonly translated. The
idea involved in the word "eventual" may be satisfied with the idea of that which is uncertain
only in respect to the element of time. A thing that is certain to happen at some time or other will
eventually come to pass although the exact time may be uncertain; to be contingent its happening
must be wholly uncertain until the event which fixes liability occurs.
The most common example of the contingent claim is that which arises when a person is bound
as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of
suretyship the surety has no claim whatever against his principal until he himself pays something
by way of satisfaction upon the obligation which is secured. When he does this, there instantly
arises in favor of the surety the right to compel the principal to exonerate the surety. But until the
surety has contributed something to the payment of the debt, or has performed the secured
obligation in whole or in part, he has no right of action against anybody no claim that could
be reduced to judgment. (May vs. Vann. 15 Fla., 553; Gibson vs. Mitchell, 16 Fla., 519; Maxey
vs. Carter, 10 Yerg. {Tenn.], 521; Reeves vs. Pulliam, 7 Bat. [Tenn.], 119; Ernst vs. Nau, 63 Wis.,
134.)
But, although it is thus evident that this claim in favor of Gaskell & Co. against Dy Poco is a
contingent claim, it by no means follows that said claim can now be allowed against Dy Poco's
estate in administration; for a contingent claim is effected by a discharge in bankruptcy the same
as an absolute claim, and that this claim has in fact been so barred is easily demonstrable, by
reference to section 56 of the insolvency Law, which reads in part as follows:
Any person liable as bail, surety, or guarantor, or otherwise, for the debtor, who . . . has
not paid the whole of said debt, but is still liable for the same, or any party thereof, may,
if the creditor shall fail or omit to prove such debt, prove the same in the name of the
creditor. (Act No. 1956, sec. 56.)

From this it will be seen that the claim in question could have been proved by Gaskel & Co. in
the bankruptcy proceedings in the name of the creditor (the Philippine Guaranty Company), if
the latter had failed to present the credit. But, as already stated, the creditor in fact proved in the
insolvency proceeding for the very claim for which the present plaintiff is contingently liable;
with the result that the present plaintiff will be exonerated to the extent of any amount which the
creditor may recover from the insolvent.
It necessarily follows that, the claim in question having been discharged in bankruptcy, it cannot
serve as the basis of recovery against the estate of Dy Poco in administration. When it happens,
as here, that both bankruptcy proceedings and administration proceedings are simultaneously
conducted over the estate of a deceased bankrupt, no claim can be proved against the
administrator which is provable in bankruptcy; and it was partly with a view for making this
point clear that we were at pains to say at the conclusion of our opinion in Sun Life Assurance
Co. of Canada vs. Ingersoll and Tan Sit, supra, that the proceeds of the policy of insurance there
awarded to the administratrix were not liable for any of the debts provable against Dy Poco in
the bankruptcy proceedings then pending.
From what has been said it follows that there was no error on the part of the trial it follows that
there was no error on the part of the trial court in disallowing the claim of Gaskell & Co. against
the administratrix of Dy Poco. Said judgment will therefore be affirmed; and it is so ordered,
with costs against the appellant.
Araullo, C.J., Johnson, Malcolm, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.

G.R. No. L-7593

December 24, 1957

Intestate Estate of the late Florencio P. Buan and Rizalina Paras Buan, deceased.
BIENVENIDO P. BUAN and A. NATIVIDAD PARAS, Co-Administrators-appellees,
vs.
SYLVINA C. LAYA, ET AL., petitioners-appellants.
Jose W. Diokno and Augusto M. Ilagan for appellees.
Rufino F. Mejia for appellants.

LABRADOR, J.:

Appeal from a decision of the Court of First Instance of Tarlac dated January 7, 1954, setting
aside the previous Order dated December 16, 1953, which had admitted a contingent claim filed
by petitioners-appellants but denied a petition to set aside an amount to answer the contingent
claim.
The record discloses that on December 15, 1953, petitioners herein filed a contingent claim for
more than P500,000 against the intestate estate of the deceased spouses Florencio P. Buan and
Rizalina Paras Buan. The contingent claim was based on the fact that on August 3, 1952, a
Philippine Rabbit Bus, owned and operated by the deceased spouses Buan, collided with a car in
which Juan C. Laya, Rodolfo Escosa, Jose S. Palma, and Juan de Leon, were riding; that the
collision was caused by the fact that the driver of the bus managed and drove the vehicle in a
negligent manner; that as a consequence of the collision Juan C. Laya was killed and his
companions suffered physical injuries. The driver of the bus was Ernesto Triguero, and he was
charged with homicide and serious physical injuries through reckless imprudence and was
sentenced therefor. The heirs of Juan C. Laya, petitioners herein, reserved the civil action for
damages, and on October 12, 1953, they filed an independent civil action in the Court of First
Instance of Manila against the administrator of the deceased spouses Buan. The petition for the
admission of a contingent claim was accompanied with a copy of the complaint filed in the civil
case above-mentioned (No. 20867, CFI Manila) and a sentence in the criminal case filed against
Ernesto Triguero, driver of the Philippine Rabbit Bus.
When the administrators learned of the filing of the contingent claim in the Court of First
Instance of Tarlac, they filed an opposition thereto on the ground that the same was not filed
before the death of the spouses Florencio Buan and Rizalina Paras Buan, which took place on
January 3, 1953, and that it was also not filed within the period prescribed by Rule 89, Section 4
of the Rules of Court. The Court of First Instance of Tarlac admitted the claim in an order dated
December 16, 1953, but denied the prayer that a portion of the estate be set aside to respond for
the amount of the contingent. Counsel for the administrators then moved to set aside the order. In
an order dated November 25, 1953, Judge Agustin P. Montesa, sitting as Judge for the Court of
First Instance of Manila, held that the civil action filed in Manila by the heirs of Laya, petitioners
herein, Civil Case No. 20867, was premature because the sentence of conviction of the driver of
the bus had not become final. The court also ordered the plaintiffs to amend their complaint
within 10 days. Thereupon, the plaintiffs in said civil case (C.F.I. Manila, No. 20867) filed an
amended complaint, dated December 18, 1953.lawphi1.net
In the meantime and on January 7, 1954, the Court of First Instance of Tarlac, on a motion for
reconsideration filed by the administrators dated January 2, 1954, set aside its previous order of
December 16, 1953, admitting the contingent claim of petitioners. The reason for the admission
of the claim, according to the court, had ceased to exist and even the plaintiffs had filed the
amended complaint in the Court of First Instance of Manila, the same has not yet been acted

upon by the said court. A motion to reconsider this order of the Court of First Instance of Tarlac
having been denied, petitioners have prosecuted this appeal to Us.
A consideration of the facts and the proceedings set forth above will readily show that the order
of the Court of First Instance of Tarlac dismissing the contingent claim is based on incorrect and
erroneous conception of a contingent claim. A contingent claim is one which, by its nature, is
necessarily dependent upon an uncertain event for its existence or validity. It may or may not
develop into a valid and enforceable claim, and its validity and enforceability depending upon an
uncertain event. (E. Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 813; 2 Moran, Comments on the
Rules of Court, 1957 edition, pp. 425-426.).
A 'contingent claim' against an estate within the statute providing for the settlement
hereof, as one where the absolute liability depends on some future event which may
never happen, and which therefore renders such liability uncertain and indeterminable. . .
It is where the liability depends on some future event after the debtor's death which may
or may not happen, and therefore makes Words and Phrases, p. 113.).
A 'contingent claim' against an estate is one in which liability depends on some future
event which may or may not occur, so that duty to pay may never become absolute. (In
Re Flewell, 276 N. W. 732, 733; 9 Words and Phrases, p. 114.).
Whether or not the heirs of the deceased, Juan C. Laya, would succeed in the action brought in
Manila against the administrators of the estate of the deceased spouses Florencio Buan and
Rizalina P. Buan, is the uncertain event or contingency upon which the validity of the claim
presented in the administration proceedings depends. While the said action has not yet been
finally decided or determined to the effect that the petitioners herein, heirs of the deceased Juan
C. Laya, have no right of action against the estate of the deceased spouses Florencio P. Buan and
Rizalina P. Buan, the contingent claim that petitioners have filed in the Court of First Instance of
Tarlac in the proceedings for the administration of the deceased spouses Florencio P. Buan and
Rizalina P. Buan, may not be dismissed. The order of the court dismissing the claim and
declaring that the same may again be entertained if another valid complaint by the petitioners
herein is filed in the Court of First Instance of Manila, is inconsistent with the nature and
character of a contingent claim. A contingent claim does not follow the temporary orders of
dismissal of an action upon which it is based; it awaits the final outcome thereof and only said
final result can cause its termination. The rules provide that a contingent claim is to be presented
in the administration proceedings in the same manner as any ordinary claim, and that when the
contingency arises which converts the contingent claim into a valid claim, the court should then
be informed that the claim had already matured. (Secs. 5. 9, Rule 87.) The order of the court
subject of the appeal should, therefore, be set aside.

The first order of the court admitted the claim but denied the petition for the setting aside of a
certain amount from the estate to respond therefor. The validity of the contingent claim is
apparent; as the driver of the bus belonging to the deceased spouses, Florencio P. Buan and
Rizalina P. Buan, was found guilty of negligence, as a result of which Juan C. Laya died, the said
deceased spousesthe employers of the drivercan be made responsible, as masters of a
servant, for damages for the death of the petitioner's father. A portion of the estate should
therefore, be set aside to respond for such damages as petitioners herein may subsequently
recover in the action they have brought in the Court of First Instance of Manila. This amount
should be fixed in the court below.
For the foregoing considerations, the order of the court dismissing the contingent claim filed by
petitioners is hereby set aside. It is hereby ordered that the claim be allowed to continue, and it is
further ordered that the court fix an amount that may be set aside to respond for the damages that
the petitioners herein may ultimately recover. Costs against the respondents.
Paras, Bengzon, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ., concur.