G.R. No. 20080. March 27, 1923

This is an appeal from an order of the Court of First Instance of Samar,
dated November 11, 1922, and appointing Jose Garcia, administrator of the estate
of the deceased Geronima Uy Coque.

The appellant is the surviving spouse of the deceased and maintains that the
court erred in not appointing him administrator instead of Jose Garcia. As the
refusal to appoint the appellant appears in an order of the court below dated
September 30, 1922, from which no appeal has been taken, we might well consider
the question raised upon this appeal res adjudicata. For the satisfaction
of counsel, we shall, however, briefly state another reason why the appeal must
fail.

It is well settled that a probate court cannot arbitrarily and without
sufficient reason disregard the preferential rights of the surviving spouse to
the administration of the estate of the deceased spouse. But, if the person
enjoying such preferential rights is unsuitable, the court may appoint another
person. (Paragraph 2 of sec. 642 of the Code of Civil Procedure.) The
determination of a person’s suitability for the office of administrator rests,
to a great extent, in the sound judgment of the court exercising the power of
appointment and such judgment will not be interfered with on appeal unless it
appears affirmatively that the court below was in error.

In the present case the court based its ruling on the fact that it appeared
from the record in Civil Case No. 1041 of the same court, that the appellant had
adverse interests in the estate of such a character as to render him unsuitable
as administrator. Unsuitableness may consist in adverse interest of some kind or
hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) The
court below therefore stated facts which may constitute sufficient grounds for
setting aside the appellant’s preferential rights and which, in the absence of
proof to the contrary, must be presumed sufficient. Whether they are in fact
sufficient, we are not in position to determine as we have not before us the
record in the aforesaid case No. 1041; it being a record of the court below,
that court could properly take judicial notice thereof, but we cannot.

The order appealed from is affirmed, with the costs against the appellant. So
ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, and
Johns, JJ., concur.