FIRST
DIVISION
FELISA NEPOMUCENO,
Plaintiff-Appellee,
G.
R.
No. L-3516
November
16, 1907 -versus-
CIRILO A.
CARLOS,
Defendant-Appellant.
D E C I S I
O N
WILLARD, J :
This is one of the special
proceedings included in Part II of the Code of Civil Procedure. It
invoked
the exercise of the jurisdiction conferred upon Courts of First
Instance
by Section 599 of that code, which jurisdiction is there called
"probate
jurisdiction". Felisa Nepomuceno, the appellee, commenced the
proceeding
on the 4th day of October, 1901, three days after the said code took
effect,
by filing a petition which sated that Agaton Almeda Carlos died in the
pueblo of Biñan in 1875; that he left a will in which he
appointed
the appellant Cirilo A. Carlos, his executor; that a certificate of his
appointment as such executor was issued by the Court of First Instance
of said province on the 9th day of July, 1875; that since that time the
appellant had been administering the property left by his father, and
that
the petitioner was the widow of Sixto Almeda Carlos, son and heir of
Agaton
Almeda Carlos. The prayer of the petition was that the appellant be
required
to present to the court an exact report of the property left by the
testator
and that he present a detailed report of his administration of such
property.
The Court ordered the appellant to file an account; such account was
filed
by him, a commissioner was appointed to receive evidence thereon, the
commissioner
made a report, which report was set aside by the court, and on the 6th
day of March, 1906, an order was entered rejecting and disapproving the
accounts presented by the defendant, removing him from the office of
executor,
ordering the parties to appear before the court for the purpose of the
appointment of a new administrator, and directing the appellant to file
further accounts. From this order the defendant appealed.
The Court below
proceeded
upon the theory that there was pending in that court a judicial
proceeding
for the settlement of the estate of Agaton Almeda Carlos, and the Order
appealed from indicates that it is the intention of the Court to
proceed
with such settlement. The appellant claimed in the Court below, and
insists
here, that there was, in 1901, no judicial proceeding of any kind then
pending for the settlement of the said estate; that if nay such
judicial
proceeding ever were pending, it was by agreement of the parties
abandoned
at the end of 1883, and that since that time, at least, the appellant
has
been administering the property in question, not as the executor of his
father's will but as an agent appointed by the persons interested in
the
property for that purpose. This was the view taken of the matter by the
commissioner in his report to the court below, and after an examination
of the record we are satisfied that it is the correct one, that the
theory
of the court below can not be sustained, and that its order must be
reversed.
In order that a Court
of First Instance may exercise its probate jurisdiction there must be
pending
in court some judicial proceeding for the settlement of her estate of a
deceased person. By the provisions of Section 64 of Act No. 136 all
actions
and proceedings pending in the former Courts of First Instance were
transferred
to the present Courts of First Instance. In order to sustain the
jurisdiction
of the court below in this case it is necessary to prove that when the
petition of the appellee was filed on the 4th day of October, 1901,
there
was then pending in that court some proceeding for the settlement of
the
estate of Agaton Almeda Carlos. There is in the case a letter written
by
Sixto Carlos to his brother, the appellant, in which he speaks of
receiving
a certificate of the appointment of the appellant as executor. The
appellant,
as executor, made an inventory of some of the property left by his
father
and he frequently styled himself "executor." There is no other evidence
in the case to show that during the twenty-six years elapsing between
1875
and 1901 the Court of First Instance of the Province of La Laguna ever
had anything to do with the settlement of the estate.
According to the law
in force prior to the Ley de Enjuiciamiento Civil, it seems that the
issuance
by a court of a certificate of the appointment of an executor did not
necessarily
indicate the existence of a judicial proceeding. As to the inventory,
this
was made by the appellant before notary public and without the
intervention
of the court. The correspondence between the brothers Sixto and Carlos
Cirilo shows that there was some controversy in May, 1877, between the
appellant and his sisters, Doña Rufina and Doña Melecia,
in regard to the estate, and this fact may have led to the making of
the
inventory which was signed not only by the appellant but also by the
two
sisters. Considering the great lapse of time between 1875 and 1901, we
do not think that these two acts, namely the appointment of the
executor
and the making, extrajudicially, of an inventory of a part of the
estate,
are sufficient to show that any proceeding for the settlement of this
estate
was ever commenced in the then of Court of First Instance of the
Province
of La Laguna. That no such proceeding was necessary in this case is
well-settled.
[Mendiola vs. Mendiola, 7 Phil. Rep., 71-75].
There is, moreover,
evidence to show that, if any such proceeding were commenced, it was
terminated
at the close of the year 1883, and from that time the appellant, in
administering
the property was acting not as executor but as an agent of his brother
Sixto and of his sister Rufina. At the end of the year 1883 all of the
four heirs interested in this estate agreed that the net vale thereof
was
97,698.13 pesos, and that the fourth part, which belonged to
Doña
Melecia, was 24,424.53 pesos, and that she should then withdraw from
the
estate her interest therein. On the 29th of December, she was paid
15,000
pesos in cash on account thereof and the balance was paid from time to
time until the 7th day of April, 1890, when she was paid in full. That
this contract of partition was agreed to by all the heirs is proved, as
to Carlos, the appellant, and Doña Melecia and her husband, by
the
fact that in 1890 they signed a public document to that effect. As to
Doña
Rufina, it is proved by her own testimony at the trial of this case, in
which she stated that she agreed to this settlement and accepted it. As
to Sixto, who died in 1900, it is proved by the oral testimony in the
case
that the contracts of 1890 were made in his house, that he examined the
books and made the liquidation, and that the private documents are in
his
hand writing. The husband of Doña Melecia also testified
positively
that Sixto agreed to the contract.
The effect of this
contract was to partition the estate and to terminate the executorship.
It is true that one-fourth of the property belonging to the estate was
not set off to Doña Melecia in kind, and it is also true that
the
other three heirs did not then divide among themselves the property
remaining
after Doña Melecia had received her part, but that does not make
it any the less a termination of the executorship. Doña Melecia
having been paid her share in cash, the other three heirs became the
joint
owners of the property.
It seems to be asserted
in the brief of the appellee in this case that the claim of the
appellant
is that the share of Sixto Carlos would now be only 24,000 pesos and
that
the appellant could satisfy that by paying that amount. We find nothing
in the case to show that the appellant has ever made any such
contention.
The three heirs are now the owners in common of all the property of the
estate. In the case of Mendiola vs. Mendiola, above cited, there was an
agreement between the persons interested in the estate by virtue of
which
the widow paid to the mother, one of the heirs 2,400 pesos, and to one
of the legatees 1,200 pesos, they receiving these sums in full
satisfaction
of all claims they had against the state. It was held that this was a
partition
of the property that terminated the judicial proceeding then pending
for
the settlement of the estate.
The Court below likens
the transaction here in question to a sale by one of the heirs of his
interest
to a third person, but in Our view of the case it can not be so
considered.
In such a case the property of the estate remains intact and has not
been
in any way decreased, but in this case, one-fourth of the property of
the
estate has actually been taken from it and there remains only
three-fourths.
In support of the views of the court below, that there was a judicial
proceeding
pending in 1901, reference is made in the opinion to the manner in
which
papers presented in this case were entitled and to the fact that in the
answers first filed by the appellant he seemed to recognize the
existence
of a judicial proceeding, but these facts can not, in our opinion, have
any controlling effect. The question is one of the jurisdiction of the
court over the subject-matter. Such jurisdiction can not be conferred
by
consent of parties. If, as a matter of law, there was, in 1901, no
judicial
proceeding pending in court for the settlement of this estate, then the
parties could not, even by their express consent, confer such
jurisdiction.
Our conclusion is that
the rights of the appellee can be made available only by an ordinary
action
and that the Court below, in exercising its probate jurisdiction in
this
case, was in error. The order appealed from is reversed, without costs
to either party in this court, and the case is remanded with directions
to the Court below to dismiss the proceeding for want of jurisdiction,
with costs against the petitioner, and without prejudice to the right
of
the petitioner to maintain such ordinary actions in Court for the
protection
of her interests as she may be advised. So ordered.
Arellano, C.J.,
Torres, Johnson, and Tracey, JJ., concur.
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