G.R. No. L-6736. May 04, 1954

This is a petition for certiorari seeking to set aside an order
issued by respondent Judge Francisco Area on April 29, 1953, granting
the motion of co-administratrix Petrita Pascual and her co-heirs for
the sale of all the real properties of the intestate estate of Eligio
Naval as well as the order issued by respondent Judge Demetrio B.
Encarnacion on May 27, 1953, sustaining the above order and denying the
motion for reconsideration of petitioners.

The petitioners herein are Isabel Gabriel, widow of the deceased
Eligio Naval, and Rudyardo Santiago, a co-administrator of the estate
in Special Proceedings No. R-677 of the Court of First Instance of
Rizal, Pasig branch. Petrita Pascual, one of the respondents, is a
co-administratrix of the estate in the same proceedings.

On November 28, 1952, Petrita Pascual, as co-administratrix, and her
co-heirs filed a motion with the court praying that all the real
properties of the intestate be sold for cash at public bidding on the
date and hour to be fixed by the court and their proceeds be deposited
in a banking institution to be designated by the court. Copy of this
motion was served on counsel for the widow, Isabel Gabriel, and the
co-administrator of the estate, Rudyardo Santiago, and the motion was
set for hearing on December 5, 1952, but the motion was not heard on
the date set in view of the absence of the judge presiding the court.
For this reason, the widow, Isabel Gabriel, and co-administrator,
Rudyardo Santiago, requested that the intestate case be transferred to
the court holding sessions at Caloocan which was then presided over by
Judge Villamor and this request was granted on February 4, 1953.

On April 6, 1953, co-administratrix Petrita Pascual and her co-heirs
filed with the court at Caloocan a motion dated April 1, 1953, inviting
the attention of the court to the pendency, among others, of their
“Motion for Sale of Real Estate” dated November 28, 1952 and praying
that all the pending motions and incidents of the estate be referred to
the branch of the court holding sessions at Pasig, Rizal. To this
motion, petitioners herein filed a written opposition alleging among
other reasons that the judges holding sessions at the Pasig branch were
all vacation judges and could not therefore take full cognizance of the
case with a view to its early settlement. Said motion dated April 1,
1953 was set for hearing on April 20, 1953.

On said date, April 20, 1953, counsel for petitioners as well as of
respondents appeared and expressed their arguments in favor and against
the motion. After the hearing, the court, then presided over by Judge
Area, issued an order dated April 29, 1953 granting the motion to sell
the real properties of the estate and setting the date of the sale on
May 30, 1953.

On May 19, 1953, petitioners filed a motion praying that the order
of the court dated April 29, 1953 be set aside on the ground that that
motion was not before the court for consideration during the hearing
that took place on April 20, 1953, but the motion filed by respondents
wherein they prayed that the intestate case be referred to the branch
of the court holding sessions at Pasig and therefore said order was
null and void because it was issued in violation of the rules of court.
In the meantime petitioners also requested that the date of the sale be
postponed until their motion for reconsideration had been acted upon.

This petition was granted and the sale was reset for June 17, 1953,
but the motion for reconsideration was denied. Hence, this petition for
certiorari.

The question to be determined hinges on the validity of the order
issued by Judge Francisco Area dated April 29, 1953, which grants the
motion to sell the real properties of the estate dated November 28,
1952, as well as the order issued by Judge Demetrio Encarnacion denying
the motion for the reconsideration of said order.

Under the rules, when it appears that the sale of the whole or part
of the real or personal estate will be beneficial to the heirs,
devisees, legatees, and other interested persons, the court may, upon
application of the executor or administrator and on written notice to
the persons interested in the estate to be sold, authorize the sale,
although not necessary to pay the debts, legacies or expenses of
administration (Section 4, Rule 90). This is the purpose of the motion
under consideration. But the rule likewise provides that, when the
court decides to authorize the sale, because it appears beneficial to
the heirs, the same shall be made subject to certain regulations.
Pertinent portions of these regulations are: (a) that the administrator
shall file a written petition setting forth facts showing that the sale
is necessary, and (6) the court shall fix a time and place for hearing
such petition, and cause notice thereof to be given to the persons
interested. And it has been held that these regulations are mandatory
because failure to comply with them will have the effect of rendering
the order authorizing the sale void as well as the sale made in
pursuance thereof. (Ortaliz vs. Registrar of Deeds of Occidental
Negros, 55 Phil., 33; Hashim vs. Bautista Vda. de Nolasco, 56 Phil.,
788; Estate of Gamboa vs. Floranza, 12 Phil., 191.)

The question that now arises is: Were there regulations followed in the present case?

The answer must of necessity be in the, negative for the simple
reason that the motion filed by respondents for the sale of the real
properties of the estate has not been set for hearing by the court as
required by the regulations. It should be noted that said motion was
primarily set for hearing by counsel on December 5, 1952, upon giving
due notice to the opposite counsel, but that the motion was not
actually heard because there was no judge who could act and take
cognizance thereof. Aside from that instance, the motion was never set
for hearing again for which reason counsel for petitioners was
surprised when he received copy of the order of the court granting the
motion for the sale of the property. It is true, as counsel for
respondents has explained, said motion was incidentally discussed at
the hearing which took place on April 20, 1953 in connection with his
motion for the transfer of the case to the Pasig branch of the court
wherein counsel of (both parties had occasion to discuss the merits
relative to the sale of the properties of the estate, but such was not
the purpose of the hearing, and counsel for petitioners went to the
court not precisely to argue that matter but merely the question
relative to the transfer of the case. Counsel even went to the extent
of informing the court that it would be necessary for him to present
evidence relative to the merits of the projected sale.

At any rate, it is clear that the authority to sell was granted in
violation of the rule, and there being objection thereto, no other
course is left than to abide by it considering the importance and
far-reaching effects of the sale on the parties affected. No prejudice
will be caused if the motion to sell is set again for hearing and the
interested parties are given another chance to be heard.

We have not failed to note that the estate has been pending for
nearly seventeen years without hope of an early settlement due perhaps,
as alleged, to the desire of some heirs to continue reaping its benefit
to the prejudice of the other heirs. We have also noticed that there
are two administrators who were appointed to take care of the
conflicting interests. There are also charges of falsification of
accounts and of fictitious claims being foisted upon the estate. Hence,
the desire to sell the properties in order to avoid waste and misuse.
But in our opinion, the remedy is not precisely the one proposed but to
put an end to the administration. Some heirs may not agree to get rid
of the properties for sentimental reasons, and so there is need to
devise a way leading to the partition of the estate. We are inquisitive
of the reason why so far no project of partition has been prepared and
submitted to the court notwithstanding the long time the estate has
been pending administration, and if such step is taken, we believe a
way may be found whereby the properties may .be distributed among tfye
heirs without need of selling them as now proposed by the respondents.
If an attempt is made in this direction we may find the key to the
solution of the controversy.

Wherefore, the order of respondent Judges dated April 29, 1953 and
May 27, 1953 are hereby set aside, and it is ordered that a new date be
set for the hearing of the “Motion for sale of Real Estate” dated
November 28, 1952 as required by the rules, without costs.

Paras, C. J., Pablo, Bengzon, Montemayor, Jugo, Labrador, Concepcion, and Diokno, JJ., concur.