SOPHIE M. SEIFERT AND ELISA ELIANOFF, PETITIONERS, VS. MARY MCDONALD BACHRACH, IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF THE DECEASED E. M. BACHRACH, AND CONRADO BARRIO…

Petitioners, sisters and heirs of the late E. M. Bachrach, who died in Manila
on September 28, 1937, pray for a command from this Court calculated to compel
the lower court to execute its order of October 2, 1940, which reads as
follows:

“Upon consideration of the petition of Sophie M. Seifert, Ginda M. Skundina,
Elisa Elianoff and Annie Bachrach Levine, of September 16, 1940, wherein they
pray that the administratrix and usufructuary of the properties left by the
deceased E. M. Bachrach be authorized to pay them, beginning July 1, 1940, and
until they receive their share of the estate left by the deceased E. M. Bachrach
upon the death of his widow, a monthly allowance of P500; P250; P250; and P250,
respectively, and the additional sum of P3,000 to the said Sophie M. Seifert,
who is in poor health, the said allowances to be deducted from their shares of
the estate of the deceased E. M. Bachrach upon the death of his widow, Mary
McDonald Bachrach;

“All the parties interested in the estate left by the deceased E. M. Bachrach
having expressed their conformity to the said petition, and there existing no
reason why the same should not be granted.

“Petition granted; and the administratrix and usufructuary Mary McDonald
Bachrach is hereby authorized and instructed forthwith to pay to the said Sophie
M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine a
monthly allowance of five hundred (P500) pesos; two hundred fifty (P250) pesos;
two hundred fifty (P250) pesos; and two hundred fifty (P250) pesos,
respectively, beginning July 1, 1940, and until the said heirs receive their
share of the estate left by the deceased E. M. Bachrach upon the death of his
widow, and the additional sum of three thousand (P3,000) pesos to the heir
Sophie M. Seifert.

“The payment of the monthly allowances herein granted to the said heirs
Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine
other than those corresponding to the months of July, August and September,
shall be made on or before the 5th day of each month, beginning October, 1940;
shall be taken from the properties to be turned over to the heirs of the
deceased E. M. Bachrach and the usufruct of which will belong to his widow, Mary
McDonald during her life; and shall be deducted from the share of the said heirs
of the estate of the deceased E. M. Bachrach upon the death of his widow.

“Upon verbal petition of Attorney Carrascoso, and it appearing from the
record that two of the clients whom his law firm represents reside outside of
the Philippines, the administratrix and usufructuary, Mary McDonald Bachrach, is
hereby authorized and instructed to pay directly to Attorneys Ross, Lawrence,
Selph & Carrascoso the monthly allowances corresponding to the heirs Sophie
M. Seifert, Ginda M. Skundina, and Elisa Elianoff.

“No opposition having been filed to the amended report, rendition of
accounts, and liquidation of the community property of the conjugal partnership
of E. M. Bachrach, deceased, and Mary McDonald Bachrach as surviving spouse
presented by the administratrix under date of September 17, 1940, the same are
hereby approved and granted. It is so ordered.”

	“QUIRICO ABETO
		“Judge“

The petition in virtue of which the above order was issued and to which all
the interested parties in the estate have expressed their conformity, as stated
in the order, reads as follows:

“Comes now Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff, and Annie
Bachrach, and to this Honorable Court respectfully state:

“1. That paragraph sixth and eighth of the will of the deceased E. M.
Bachrach provide as follows:

” ‘Sixth: It is my will and do herewith bequeath and devise to my
beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the
remainder of all my estate after payment of the legacies, bequests and gifts
provided for above; and she may enjoy such usufruct and use or spend such fruits
as she may in any manner wish.’

” ‘Eighth: It is my wish that upon the death of my beloved wife,
Mary McDonald Bachrach, all my estate, personal, real and otherwise, and all the
fruits and usufruct thereof which during her life pertained to her, shall be
divided as follows:

” ‘One-half (1/2) thereof shall be given to such charitable hospitals in the
Philippines as she may designate; in case she fails to designate, then said sum
shall be given to the Chief Executive of these Islands who shall distribute it,
share and share alike to all charitable hospitals in the Philippines excluding
those belonging to the governments of the Philippines or of the United
States:

” ‘One-half (1/2) thereof shall be divided, share and share alike by and
between my legal heirs, to the exclusion of my brothers.’

“2. That on July 22, 1940, this Court entered the following order:

” ‘It appearing from the report filed by the commissioner, the Acting
Assistant Clerk of the Court, that the only heirs of the deceased E. M.
Bachrach, according to the evidence presented, are his widow Mary McDonald
Bachrach and his sisters Sophie M. Seifert, Annie Bachrach, Ginda Skundina and
Elisa Elianoff, the Court hereby declares said Mary McDonald Bachrach, Sophie M.
Seifert, Annie Bachrach, Ginda Skundina and Elisa Elianoff as the only legal
heirs of said deceased, all of whom are of legal age.

” ‘So ordered.’

“Your petitioners who are the legal heirs of the deceased E. M. Bachrach
beside his widow, Mary McDonald Bachrach, respectfully request that she, as
administratrix and usufructuary of her deceased husband’s properties, be
authorized to pay your petitioners from and after July 1, 1940, and until they
receive their share of the estate left by the deceased E. M. Bachrach upon the
death of his widow, a monthly allowance of P500, P250, P250, and P250,
respectively, and the additional sum of P3,000 to the heir Sophie M. Seifert,
who is in poor health, the said allowances to be deducted from your petitioners’
share of the estate of the deceased E. M. Bachrach upon the death of the
widow;

“All parties interested in the estate left by the deceased E. M. Bachrach are
agreeable to this petition.

” Manila, September 16, 1940.

“ROSS, SELPH, CARRASCOSO & JANDA

	By (Sgd.) “ANTONIO T. CARRASCOSO, Jr.
		Attorneys for Ginda M. Skundina,
			Elisa Elianoff, and Sophie Seifert
				414 National City Bank Bldg., Manila

“We agree:

(Sgd.) “ANNIE BACHRACH
(Sgd.) “MARY MCDONALD BACHRACH
	Administratrix and Usufructuary
(Sgd.) “ROMAN OZAETA
	“Solicitor General“

No appeal has been taken against the foregoing order by any party.

From July 1, 1940, to December 31, 1941, the administratrix, respondent Mary
McDonald Bachrach, made the payments as ordered. According to respondents, the
total amount paid amounted to P40,250. The monthly allowances or advances due
from January 1, 1942, to July 31, 1945, were not paid. The total amount is
P32,500 or P21,500 for Sophie M. Seifert and P10,750 for Elisa Elianoff.
Payments were resumed from August, 1945, to January, 1947. Petitioners have been
demanding from respondent Mary McDonald Bachrach the payment of the monthly
allowances from January 1, 1942, to July 31, 1945, but respondent refused to
pay. As alleged in her memorandum, the executrix “decided to stop the payment”,
among several reasons, in view of the “inconsiderate, unappreciated and unkind
attitude” of petitioners, the increasing burden on Mrs. Bachrach’s usufruct, and
improbability of reimbursement to the estate of the payments and of the return
to the executrix of the usufructuary value of said allowances.

On February 18, 1947, petitioners filed with the lower court a petition for
the issuance of a writ of execution ordering, on the authority of the order of
October 2, 1940, the administratrix to pay the allowances for February, 1947,
and those in arrears for the period comprising January 1, 1942, to July 31,
1945, and that in case the administratrix should fail to pay the above amounts
within 24 hours after receipt of notice, the Hongkong and China Banking
Corporation be ordered to deliver to attorneys for petitioners the total sum of
P33,000, to be withdrawn from the funds that the administratrix has on deposit
in said bank in the name of the estate of E. M. Bachrach.

The petition was denied on February 27, 1947. On March 4, 1947, petitioners
filed a motion for the reconsideration of said order. On March 14, 1947, the
motion for reconsideration was denied. Not satisfied with the orders of February
27, and March 14, 1947, of the lower court, petitioners filed with us the
petition in this case.

For a proper understanding of the controversy we quote hereunder the text of
the will of E. M. Bachrach:

“I, E. M. Bachrach, a naturalized American citizen from the State of New York
and resident of the City of Manila, Philippine Islands, being of sound and
disposing mind and memory and not acting under duress, menace, fraud or undue
influence of whatever nature, do hereby make, publish and declare the following
to be my Last Will and Testament, to-wit:

“First: I hereby declare that I have no child or children,
grandchild or granchildren.

“Second: My failure to make any provision in this Will for my
brothers is intentional.

“Third: I hereby revoke and cancel any and all Wills by me
heretofore made.

“Fourth: I hereby bind, obligate, and instruct my executors or
administrators to make and pay the following bequests, legacies or gifts,
to-wit:

“(a) To Mary McDonald Bachrach, my beloved wife, I give one-half (½)
of the proceeds of the house known as “Casa Blanca,” my residence at 105 Manga
Avenue, Sta. Mesa, Manila, and of the rights to the lease on the parcel of land
wherein said house is built. As all the furniture, fixtures and silverware
contained in the house were bought by my beloved wife Mary McDonald Bachrach out
of her own personal funds, and furniture, fixtures and silverware, being her own
property, I hereby order that the same be returned to her and disposed of by her
as she may wish and for her own benefit.

“(b) To Mary McDonald Bachrach, my beloved wife, I give an allowance
of five hundred pesos (P500) each month as living expenses.

“(c) To Mina Levine, daughter of Hyman Levine, the sum of ten
thousand pesos (P10,000) to be paid to her upon my death.

“(d) To Hyman Levine, the sum of one thousand pesos (P1,000) for
each year of service he has given me or the Bachrach Motor Co., Inc., that is
one thousand pesos (P1,000) for each year since January, 1917, when he entered
the employment of the Bachrach Motor Co., Inc.

“(e) To Martin Elianoff and his wife Luba Elianoff, the sum of Ten
Thousand Pesos (P10,000) jointly.

“(f) To Afna Elianoff, daughter of Martin Elianoff, the sum of Ten
Thousand Pesos (P10,000) which amount is to be deposited in any bank her father
may choose, and is to be used for her education and upon her becoming of age,
she may withdraw and use the remainder thereof if any, as she may deem fit.

“(g) To Temple Emil Congregation, the sum of ten thousand pesos
(P10,000).

“(h) To Sofie Seifert, wife of John Seifert, now residing at San
Francisco, California, the sum of ten thousand pesos (P10,000).

“(i) To Ginda Scundin, married to Henoch Scundin, now residing at
Kiev, Russia, the sum of ten thousand pesos (P10,000).

“(j) To Lisa Elianoff, widow of Abraham Elianoff, now residing at
Moscow, Russia, the sum of ten thousand pesos (P10,000).

“Fifth: I hereby choose and appoint my beloved wife, Mary McDonald
Bachrach, as my administratrix and executrix to hold, keep, possess and invest
all my remaining properties for the benefit and advantage of the estate.

“Sixth: It is my will and do herewith bequeath and devise to my
beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the
remainder of all my estate after payment of the legacies, bequests and gifts
provided for above; and she may enjoy such usufruct and use or spend such fruits
as she may in any manner wish.

“Seventh: It is my express wish that the business of the Bachrach
Motor Co., Inc., the controlling shares of which I hold and own, shall not be
dissolved, disposed of, or discontinued for a period of at least FIVE years
after my death, unless the company is conducted at a losing basis; and the
payment of the bequests, legacies and gifts above mentioned shall be made from
my income and estate as shall least disturb or disrupt the business of the
Bachrach Motor Co., Inc., as a going concern;

“Eighth: It is my wish that upon the death of my beloved wife, Mary
McDonald Bachrach, all my estate, personal, real and otherwise, and all the
fruits and usufruct thereof which during her life pertained to her, shall be
divided as follows:

“One-half (½) thereof shall be given to such charitable hospitals in the
Philippines as she may designate; in case she fails to designate, then said sum
shall be given to the Chief Executive of these Islands who shall distribute it,
share and share alike to all charitable hospitals in the Philippines excluding
those belonging to the governments of the Philippines or of the United
States;

“One-half (½) thereof shall be divided, share and share alike by and between
my legal heirs, to the exclusion of my brothers.

“Before signing this Last Will and Testament, I hereby declare that I have
read and understood each and every provision hereof, and hereby publish and
declare the same as my Last Will and Testament.

“Done in this City of Manila, this 3d day of December, 1935.

(Sgd.) “E. M. BACHRACH”

The following facts can also be taken into consideration: (1) A report filed
by respondent Mary McDonald Bachrach on January 24, 1941, giving in detail a
list of properties belonging to the heirs of E. M. Bachrach, shows a total value
of P1,069,494.34; (2) The administratrix has in her possession the sum of
P351,016.91; (3) The administratrix has made “all the transfers or is proceeding
with the transfers in the name of the estate of E. M. Bachrach for the heirs of
the said E. M. Bachrach,” of the properties whose total value according to the
last project of partition is P1,069,494.34; (4) Among the properties in the
possession of the administratrix is the sum of P351,016.91 which has already
been adjudicated to, and belongs, although still pro indiviso, to the
heirs of the deceased E. M. Bachrach, from which, according to petitioners, the
monthly allowances due to petitioners should be paid in accordance with the
order of October 2, 1940; (5) Petitioners allege that the monthly allowances due
them shall not be taken from the one-half of the properties amounting to
P1,069,494.34 which is the share of the charitable hospitals, but from their
respective participations in said property; (6) The Solicitor General agreed to
the payment of the monthly allowances as per his conformity signed at the bottom
of the petition of September 15, 1940; (7) Respondent Mary McDonald Bachrach has
made advance payments to charitable institutions amounting to P22,000 from the
participation of the charitable hospitals without prior authority from the
probate court; (8) On May 27, 1947, the Solicitor General filed a manifestation
undoubtedly for the protection of one-half of each and every asset of the estate
of the deceased E. M. Bachrach, belonging to the charitable hospitals, in
accordance with the eighth clause of the will; (9) On June 9, 1947, petitioners
answer by stating that their monthly allowances shall not be taken from the
shares or participation belonging to the charitable hospitals but from
petitioner’s participation or interest in the other one-half of the estate of E.
M. Bachrach which belongs to the heirs of the deceased; (10) On June 11, 1947,
the Solicitor General filed an additional manifestation in which it expresses
its satisfaction over the statement made by petitioners on June 9, 1947.

There is no question that the monthly allowances provided in the order of
October 2, 1940, were agreed upon by all the parties for the maintenance of the
four sisters of the deceased E. M. Bachrach, including herein petitioners. In
the order of February 27, 1947, Judge Conrado Barrios found that the
heirs-petitioners Sophie M. Seifert and Elisa Elianoff “are in dire need of
funds for support.”

Several reasons are advanced by respondents in their opposition to the
compliance with and execution of the order of Judge Abeto dated October 2, 1940.
We shall pass upon the important ones.

They allege that the conformity given by Mary McDonald Bachrach to the
petition of September 16, 1940, as well as the payments made by her of the
monthly allowances under the order of October 2, 1940, “was an act of pure
liberality on her part and, therefore, could not be construed as giving rise to
any obligatory relations between said respondent executrix and the parties
receiving said monthly allowances.” The allegation is unacceptable. Conformity
is consent. According to a universal law, recognized in our Civil Code, consent
is the source of obligations. That respondent has given her conformity as an act
“of pure liberality on her part” does not change the nature of the legal effect
of the consent given. The commitment she made with her conformity cannot be
dismissed upon the ground that it was given as “pure liberality” or for any
other motive. Provided the consent was freely given, and regardless of the
motive behind the act, it gives rise to all proper legal effects. The conformity
or agreement of all the parties to the petition of September 16, 1940, gives it
the nature of a contract. The contracting parties are bound to respect and to
abide by the commitments in said contract. The contract cannot be lightly
dismissed. Respondent’s allegation that Mary McDonald Bachrach had given her
conformity without any consideration, is belied by her own allegation to the
effect that she gave said conformity as “an act of pure liberality on her part.”
Pure liberality is a consideration recognized by the Civil Code. No other
consideration is entertained in donations. The contract in this case has the
added force and solemnity of having been approved by the order of Judge Abeto of
October 2, 1940. The contract has been elevated to the category of a judgment.
Its enforceability depends not only on the good faith of the parties but on a
legal and executory order issued by a competent court. While respondent Mary M.
Bachrach cannot ignore her plighted word, she has absolutely no right to
consider the order of October 2, 1940, as a mere scrap of paper. Otherwise, if
their orders could be simply ignored, challenged or taken with scorn, there is
no use for the existence of courts.

Respondents alleged that “there is no provision in the will of the deceased
E. M. Bachrach or in any statute requiring” the payment of the monthly
allowances provided in the order of October 2, 1940. But is there any
prohibition for the parties to agree in the payment of said monthly allowances?
Was there any reason for the lower court to withhold its approval to the
agreement? The allegation seems to imply an argument based on the denial of the
basic right of the parties to enter into any kind of agreement neither forbidden
by law nor against public morals.

The respondents alleged that the order of October 2, 1940, “was not intended
to be a judicial mandate but merely an authority for the respondent Mary
McDonald Bachrach to do certain acts which she could not perform under the law
or under the provisions of the will of the deceased E. M. Bachrach without
judicial authority.” The allegation finds no support in the order wherein Mary
McDonald Bachrach is “authorized and instructed forthwith to pay” the monthly
allowances in question. Instructed means commanded. The inclusion of the last
word negatives respondent’s allegation. Mary McDonald Bachrach did not appeal
against the order. She cannot now deny validity to the command involved in the
word “instructed.” Besides, an “order”, the title of the document, cannot be
anything other than a mandate, compulsory by nature.

Impairment of her usufruct is also alleged by the administratrix. How can she
now complain of the alleged impairment after alleging that she gave her
conformity to the agreement, the basis of the order of October 2, 1940, as “an
act of pure liberality on her part?” Was she not the owner of her usufruct?
Could she not give away her usufruct or any part of it in favor of any person?
If she disposed of a portion of said usufruct for the benefit of the sisters of
her deceased husband, without being subject to compulsion, or fraud, or mistake,
but freely and conscientiously, there is no reason for her to complain now. When
she gave her conformity to the petition upon which the order of October 2, 1940, was issued, she did it undoubtedly in the same spirit of charity with which
her deceased husband, E. M. Bachrach, had written his will. She deserves
commendation for the beauty of her act in seconding the attitude of helpfulness
of her husband towards the petitioners. Charity is the choicest flower of the
human spirit. While the late E. M. Bachrach and his widow were concerned in
helping charitable hospitals, they did not forget the needy sisters of the
deceased, as charity must start at home. We are not willing to help respondent
withdraw now what she has given to petitioners voluntarily and with noble spirit
of liberality.

Because petitioners perfected an appeal against the order of the lower court
granting the administratrix the authority prayed for in her petition of February
19, 1947, to sell “the portion of the estate destined for charity,” respondents
complain that petitioners have improperly and against the principles of orderly
procedure, split the order of October 2, 1940, and simultaneously perfected an
ordinary appeal from a part of the order of February 27, 1947, and filed the
present petition for a writ of mandamus in connection with the other
part. The complaint is groundless. The present petition refers to the execution
of the order of October 2, 1940, while the appeal in question has been filed
against the order of February 27, 1947, granting the executrix’s petition dated
February 19, 1947, the basic pleading in the record on appeal of March 31,
1947.

The last important argument of respondents is that no execution can validly
be issued in connection with the order of October 2, 1940, because of the
moratorium provided in Executive Order Nos. 25 and 32, which is still
in full force and effect. The allegation cannot be entertained. The monthly
allowances provided in the order of October 2, 1940, are not among the money
obligations for which a moratorium has been decreed. The allowances in
question are advances of an inheritance. They have been paid and are to be paid
to petitioners as advances of the respective shares in the estate of their
deceased brother E. M. Bachrach. They are not debts. The moratorium
refers to debts. It is enough to look at the title of the executive orders in
question.

Section 1 of Rule 39 provides:

“Execution as of right.—Execution shall issue upon a final judgment
or order upon the expiration of the time to appeal when no appeal has been
perfected.”

The provision is mandatory. There is no question that the order of October 2,
1940, has become final. Upon the facts in this case and the law applicable
thereto, it is the ministerial duty of the lower court to order the execution of
October 2, 1940. Failure to comply with said ministerial duty is a proper case
for mandamus.

For all the foregoing, we grant the petition, and the respondent lower court
is ordered to proceed with the execution of its order of October 2, 1940, and to
issue the proper writs.

Paras, Bengzon, and Tuason, JJ., concur.

FERIA, J.:

I concur in the result.

---

BRIONES, M.:

Es incuestionable el derecho de las peticionarias a los adelantos devengados
y acumulados durante la guerra, pero no cobrados a causa de la misma. Habiendose
autorizado y ordenado el pago de dichos adelantos en virtud de auto judicial de
fecha 2 de Octubre, 1940, previa conformidad expresa de la administradora
recurrida, todos los beneficios y derechos derivados del mismo a favor de las
peticionarias son validos y efectivos, por lo menos hasta que dicho auto se
revoque o modifique mediante procedimientos apropiados al efecto. No hay nada en
autos que demuestre que ese auto haya dejado alguna vez de estar en vigor.
Consta, por el contrario, que cuando despues de la liberacion de Filipinas de la
ocupacion japonesa las peticionarias trataron de cobrar lo que se les debia en
virtud del referido auto, este tenia plena fuerza y efectividad.

Asi que sin necesidad de discutir si el auto en cuestion ha creado un estado
juridico firme e irrevocable, o se halla en todo tiempo sujeto al control del
Juzgado, susceptible de revocacion, alteracion o modificacion de acuerdo con las
circunstancias y condiciones variables de la testamentaria, resulta evidente que
no habiendose revocado o modificado la orden, la misma debe hacerse efectiva con
efecto retroactivo. Lo contrario seria una mala practica procesal. El buen orden
de los tramites y procedimientos judiciales exige que las ordenes validas y
existentes se hagan efectivas.

Carece de importancia el que esto se llame orden de ejecucion, o lo que sea.
Lo importante es que el Juzgado de cumplimiento a la orden; y si no lo hace, se
le puede compeler mediante mandamus.

En el presente caso es posible que la administradora y usufructuaria tenga
derecho a pedir que se le releve o dispense de los efectos de la orden de 2 de
Octubre, 1940, si tuviere buenos fundamentos para ello; pero no solo no lo ha
pedido formal y seriamente, de acuerdo con la regla y practica procesal
pertinente, sino que, aunque lo hiciera, dudamos mucho que pueda prosperar el
pedimento, constando, como consta, que la herencia yacente no solo no ha sufrido
una dislocacion irremediable, sino que cuenta con fondos montantes a 351 mil
pesos—muchisimo mas que suficientes para sufragar los adelantos en cuestion, sin
detrimento del usufructo de la recurrida.

Ademas, si el Estado ya ha recibido y esta recibiendo sustanciales anticipos
de la mitad que le corresponde en la herencia ¿por que las peticionarias, que
son hermanas del testador, no han de tener, por lo menos, el mismo
derecho?

Voto, por tanto, en favor de la concesion del recurso.

---

PABLO, M.:

Disiento. En mi humilde opinion no procede el recurso de mandamus en
el caso presente. La apelacion es el remedio adecuado para revisar la orden del
Hon. Juez Barrios de 27 de Febrero de 1947 que desestimo la mocion de las
recurrentes de 18 de Febrero del mismo año. La mocion de reconsideracion esta
bien denegada.

La orden de 2 de Octubre de 1940 que concede pension a las recurrentes
(monthly allowance) no es irrevocable, que con el simple transcurso del tiempo
ya es deber ministerial del Juzgado el cumplir o mandar cumplir por medio del
Sheriff sus disposiciones. La naturaleza de la obligacion de dar pension esta
sujeta en algunos casos a las fluctuaciones de la capacidad economica del
obligado; en otros, en la necesidad del pensionista. Uno que presta pension de
P200 mensuales, por ejemplo, que esta recibiendo en sus negocios un ingreso
liquido de P2,000 no esta obligado a continuar concediendo la misma cantidad si,
por las vicisitudes de una guerra, no obtiene ganancias sino que queda
arruinado. Un niño recien nacido no ha de recibir una pension igual a la que
recibiria si estuviese estudiando medicina. Aunque existiera una sentencia final
sobre la prestacion de una pension, su cuantia no es irrevocable, ni firme: esta
sujeta a varias circunstancias de cada caso particular y es el Juzgado el que
tiene la facultad de determinar su aumento o diminucion, su pago completo o
suspension, despues de oir a las partes interesadas. “Se concede considerable
amplitud al juzgado de primera instancia para modificar o revocar sus propias
ordenes, en tanto en cuanto esten pendientes las actuaciones en el mismo juzgado
y se presenten en tiempo oportuno solicitudes o mociones para tales
modificaciones por las partes interesadas.” (Oñas contra Javillo y
otros, 54 Jur. Fil., 643.)

Es absurda la teoria de que la orden de 2 de Octubre de 1940 dictada en la
Testamentaria de E. M. Bachrach es ejecutoria y es deber ministerial del Juzgado
el hacer cumplir sus disposiciones. El articulo 1.° de la Regla 39 no es
aplicable al caso presente; no es aplicable a las actuaciones sobre la
administracion y distribucion de los bienes de difuntos; es solamente aplicable
a los asuntos ordinarios.

Y si es final esa orden de 2 de Octubre de 1940, como si fuera una sentencia
dictada en un asunto ordinario, entonces seria mas improcedente aun el
mandamus. Desde la fecha de su promulgacion hasta el 27 de Febrero de
1947 en que se dicto la orden, cuya revocacion piden las recurrentes, han
transcurrido ya seis años, cuatro meses y veinticinco dias. Despues del
transcurso de cinco años ya no se puede pedir por medio de una simple mocion la
ejecucucion de una sentencia. (Articulo 6, Regla 39.)

Si es erronea o no la orden de 27 de Febrero de 1947, el error debe
corregirse en una apelacion y no en un recurso especial de mandamus.
Solamente se puede hacer uso de tal remedio cuando no existe en el curso
ordinario de los procedimientos un medio facil, adecuado y expedito como la
apelacion. (Herrera contra Barretto, 25 Jur. Fil., 253; Gala
contra Cui y Rodriguez, 25 Jur. Fil., 540; Provincia de Tarlac
contra Gale, 26 Jur. Fil., 356; Napa contra Weissenhagen, 29
Jur. Fil., 188; Gobierno de las Islas Filipinas contra Juez de Primera
Instancia de Iloilo y Bantillo, 34 Jur. Fil., 166; Ello contra Juez de
Primera Instancia de Antique, 49 Jur. Fil., 160; Santos contra Juzgado
de Primera Instancia de Cavite, 49 Jur. Fil., 416; Regala contra Juez
del Juzgado de Primera Instancia de Bataan, 77 Phil., 684; Ong Sit
contra Piccio, 78 Phil., 785.)

Debe denegarse la
solicitud.

---

HILADO, J.:

I am constrained to dissent from the foregoing opinion of the majority. In my
view of the case, its final analysis boils down to the pivotal question of
whether the petition dated September 16, 1940, filed by the instant petitioners
(Sophie M. Seifert and Elisa Elianoff) and Ginda M. Skundina and Annie Bachrach,
bearing the conformity of the instant respondent Mary McDonald Bachrach as
“administratrix and usufructuary”, as well as that of the Solicitor General, and
transcribed on pages 3-5 of the majority decision, became so binding upon the
probate court after it granted said petition by its order of October 2, 1940,
inserted on pages 1-3 of the same decision, that it became the ministerial duty
of said court to subject the estate under administration absolutely and
unqualifiedly to the payment of each and every monthly allowance specified in
the said petition, regardless of the vicissitudes which the estate might go
through before its final settlement and distribution after payment of “the
debts, funeral charges, and expenses of administration, the allowances to the
widow, and inheritance tax”, or any of these concepts, as provided in Rule 91,
section 1. The majority opinion enumerates these so-called allowances, quoting
from the lower court’s order of October 2, 1940, as follows:

Sophie M. Seifert	P500.00 monthly;
Ginda M. Skundina	250.00 monthly;
Elisa Elianoff	250.00 monthly;
Annie Bachrach Levine	250.00 monthly

beginning July 1, 1940, through the war years, to the present, plus an
additional P3,000 to Sophie M. Seifert “who is in poor health”.

Paragraph VI of the petition alleges that of the above amounts the
administratrix, who is the same widow of the deceased, did not pay petitioners
the monthly allowances from January 1, 1942, to July 31, 1945, or a total of
P21,500 for petitioner Sophie M. Seifert, and P10,750 for petitioner Elisa
Elianoff. Roughly, this would comprise the war years when the business of the
aforesaid estate was laid prostrate and its properties suffered heavy losses,
which facts and circumstances must have been taken into consideration by the
respondent judge Hon. Conrado Barrios, when by his order of February 27, 1947,
he denied petitioners’ petition filed on February 19, 1947, excepting that part
relating to the “allowances” of petitioners Sophie M. Seifert and Elisa Elianoff
for the months of February and March, 1947, which said judge ordered to be paid
“out of the available funds of the estate.” These so-called allowances cannot
be, in my opinion, other than advancements on account of petitioners’ hereditary
portions. They are not real allowances in the sense of something which they have
a right to receive from the estate pending actual delivery of their
hereditary portions. There is no law that would give them that right, in view of
the fact that they are not the widow nor the minor or incapacitated children, or
members of the family, of the deceased.

Under section 684 of the Code of Civil Procedure, those entitled to such
allowances were the widow and minor children of the deceased. In section 753 of
the same Code these are referred to as “the family of the deceased.” And under
Rule 84, section 3, of the present Rules of Court those entitled to such
allowances are “the widow and minor or incapacitated children” of the deceased.
But even their right to receive the allowance is there provided to be made
“under the direction of the court,” which implies the continuing power of the
probate court to control at least the amount of the allowances, according to the
varied and unpredictable circumstances under which the estate may pass from time
to time during the judicial administration thereof. The last cited provision
ends, in referring to the allowances, with the important clause: “such
allowances as are provided by law.” And article 147 of the Civil Code ordains
that the amount allowed for support, in the cases referred to in article 146,
shall be reduced or increased proportionately according to the increase or
reduction of the necessities of the recipient and the means of the
person obliged to give it. Even if petitioners had been included in the cases
referred to in article 146 (which are those mentioned in article 143) of the
Code—which would have given them a legal right to support—it would seem
clear, even in that hypothesis, that the probate court, in granting the
aforesaid petition of September 16, 1940, should not be deemed to have given up
its legal authority and duty to exercise a continuing control over the amount of
the allowance, as contemplated in said article 147 and as held in Gorayeb
vs. Hashim, 47 Phil., 87, 88, hereinafter more particularly discussed.
Neither could said court have validly renounced such a vital part of its
jurisdiction.

The pertinent legal provisions to which reference is thus made are found in
articles 143, 146, and 147 of the Civil Code. Article 147 expressly provides
that the amount allowed for support (allowance) in the cases to which article
146 refers shall be reduced or increased proportionately according to the
increase or reduction of the necessities of the recipient and the means
of the person obliged to give it. And it was upon such provision that this Court
held in Gorayeb vs. Hashim, supra, as follows:

“With reference to the amount of the maintenance allowance awarded by the
court below, it may be observed that inasmuch as in respect to modifications, a
judgment rendered in a suit for separate maintenance is not regarded as final
and may be modified at any time for sufficient reasons upon application to the
court having original jurisdiction, the appellate courts will, as a rule, not
interfere with the findings and conclusions of the lower courts in regard to
such allowances. Upon the evidence before us, we cannot say that in this case
the allowance is so excessive as to call for our interference.”

Of course, while the case just cited was concerned with the allowance of a
wife, the governing legal the same in other cases of support comprised within
the same codal articles providing for a wife’s support.

If even in cases of allowance or support provided for by law the competent
court retains a continuing power in the proceedings or the case involving the
same, to control and direct the giving thereof as regards its amount, and if “in
respect to modifications, a judgment rendered in a suit for separate maintenance
(the rule should be the same in an estate proceeding because the reason therefor
is the same in both cases) is not regarded as final and may be modified at any
time for sufficient reasons upon application to the court having original
jurisdiction”, why should the probate court in the instant case be denied that
power or control when the allowances claimed are not even provided for by
law, nor by will, nor by contract?

Title VI of Book I of the Civil Code does not contain any provision for such
an allowance to parties situated as are petitioners herein. The will of the
deceased E. M. Bachrach does not contain any provision therefor.

The majority opinion, however, holds that “the conformity or agreement of all
the parties to the petition of September 16, 1940, gives it the nature of a
contract.” I cannot subscribe to this holding. The conformity of respondent to
that petition was given in her double capacity of “administratrix and
usufructuary.” As administratrix, she was a mere agent of the probate court and
was not acting in her personal capacity. And while as usufructuary she was
acting in such personal capacity, in the very nature of things, the fundamental
inquiry which now demands our consideration is whether the probate court’s
granting of the aforesaid petition made it so binding upon said court that it
has no other alternative but to order or authorize specific payment of
all the monthly allowances mentioned in the petition—that the court by
granting said petition lost all control over the matter and became thenceforward
completely powerless to order a reduction of the so-called allowances even
though facts and circumstances subsequently supervening advised such reduction
in the court’s judgment and discretion. Such a proposition amounts to
nothingless than to assert that the probate court was by the will of the parties
divested of a very substantial part of its jurisdiction and control over the
estate. It is said that “the conformity or agreement of all the parties to the
petition of September 16, 1940, gives it the nature of a contract.” If we were
to consider such an alleged contract to have been entered into by respondent, as
judicial administratrix, it could not be her personal contract—if at all, it
would be the contract of the probate court, of which she was a mere agent as
such administratrix, and which granted the petition; but this is entirely
unthinkable. A probate court, or any other court of justice for that matter,
cannot, and never does, enter into any contract or agreement regarding its
jurisdiction, much less to barter it away wholly or partially. And even if it
should be said that respondent Mary McDonald Bachrach entered into that
agreement or contract also as a usufructuary—altho I do not admit even this—it
is obvious that her will, as thus expressed therein, was and is subordinated to
the superior will of the probate court. In other words, the fact that she, as
usufructuary, may agree that she be authorized by the court to pay the so-called
allowances, if the probate court, which is the guardian and keeper of the estate
of the deceased, should at any time consider such burden as too onerous upon the
estate for the reasons already stated above or any other that the court might
have had, it is the will of said court that must prevail and not that of the
usufructuary. Such a contingency concretely happened with respect to the
“allowances” corresponding to the war years, which the court evidently
considered unjustifiable due to the “reduction * * * of the means” of the estate
by reason of the war; and the court in effect ordered a reduction of the
“allowances” in general by refusing to order payment of those corresponding to
said years.

Under clause eight of the will of the deceased (pp. 8-9, majority opinion)
the testator’s legal heirs will have no right to receive the half of his estate,
personal, real and otherwise, bequeathed to them, until his widow’s death—”upon
the death of my beloved wife,” is the testator’s textual phrase. During the
judicial administration of the estate the probate court had the duty to give
preferential consideration to the payment of the deceased’s debts and
obligations, aside from the administration expenses. The probate court must have
considered that during that period the estate might suffer losses which would
diminish its assets, as it actually did during the late war when the business
and properties of the estate suffered heavy losses and were subjected to a
terrible financial frustration. Consequently, in the exercise of its control
over the disbursements to be made, among other things, by way of the so-called
allowances to the present petitioners, that court had to consider all these
matters and even eventualities, and to act accordingly, not permitting the widow
and the legal heirs to deviate it from the course most in consonance with the
will of the testator and the law, in the court’s best judgment and discretion.
And I am persuaded that this is exactly what Judge Barrios did when he denied
authority for the payment of the so-called allowances corresponding to the war
years. If we held the probate court, and after the closing of the estate
proceeding, the widow, absolutely bound to the payment of each and all of the
so-called monthly allowances to petitioners, regardless of losses in the
meantime suffered by the estate, until the widow’s death it may happen that upon
the arrival of the time predetermined by the testator—the demise of his
widow—for his legal heirs to receive their portion in the estate, petitioners
will have received, by way of “allowances”, more than the portion intended by
the testator, to the damage and prejudice of other legal heirs who have not
given their conformity to what the majority opinion calls an “agreement” or a
“contract” between petitioners and the widow.

Furthermore, a sounder construction of the petition of September 16, 1940,
would be that whatever may have been agreed upon by the parties therein was
without prejudice to the continuing control and power of the probate
court over the subject-matter thereof under the applicable provisions of the law
and rules.

Even though petitioners are among the “legal heirs” mentioned by the testator
in the 8th clause of his will, under said clause they will not be entitled to
take delivery of and receive their shares in the estate until the demise of the
decedent’s widow. So that the so-called allowances, or more accurately,
advancements spoken of in the court’s order of October 2, 1940, were not granted
as a matter of right.

Consequently, I am of the considered opinion that the respondent judge acted
entirely within the powers of the probate court that he was presiding in
refusing to issue a writ of execution or otherwise to order payments, as prayed
for by petitioners, and in entering its order of February 27, 1947. And, as in
Gorayeb vs. Hashim, supra, I believe we should here apply the same rule
that “the appellate courts will, as a rule, not interfere with the findings and
conclusions of the lower courts in regard to such allowances”. It is submitted
that the instant petition should be denied.

MORAN, C. J.:

I concur in this opinion of Mr. Justice Hilado.

PADILLA, J.:

I concur in the foregoing dissent.