G.R. No. 1403. October 27, 1905

On the 2d day of April, 1903, the appellants in this case brought an
action against the defendant, Juana Moreno, the mother, guardian, and
administratrix of the minor children Leandro Gruet and Maria de la Paz
Gruet, asking that she be removed from office on the ground that she
was physically incapable of discharging the duties of her trust and
that Andrea Atayde and Jose Alemany, as their nearest relatives, be
appointed in her place as guardian and administrator, respectively, of
said children and their estate.

By an order entered on the 6th day of April of the same year, the
court removed the said Juana Moreno from her said office, and appointed
Andrea Atayde guardian of the said minors and Jose Alemany
administrator of their property, said appointments to take effect upon
the filing of a sufficient bond in the amount of 25,000 pesos, Mexican.
The reason given by the court in the said order for the removal of
Juana Moreno was that on account of her ill health she was incapable of
continuing to discharge the duties of her said office as guardian of
the said minors and administratrix of their property.

The bond required by the court having been filed on the 7th of
April, the necessary appointments were issued to the said Andrea Atayde
and Jose Alemany, as directed in the order of the court dated the day
before.

On the 7th of April Juana Moreno died, and it was therefore
impossible for the sheriff to serve upon her on that date the order
requiring her to appear in this action.

On motion by attorney Herrero, on behalf of the estate of the said
Juana Moreno, an order was made and entered on the same date, to wit,
the 7th of April, setting aside the order of the court entered the day
before, whereby plaintiffs in this action were appointed guardian and
administrator, respectively, of the said children and their estate, and
ordering them to appear on the 14th of said month and show cause why
their appointments theretofore issued should not be vacated.

After hearing the parties, the judge rendered a decision on the 16th
of April vacating the appointments made in favor of the plaintiffs, and
ordered the bond filed by Jose Alemany canceled, and thereupon
appointed Carlos Rastrollo and Miguel Velasco guardian and
administrator, respectively, pending the probate of the will of Juana
Moreno. From this judgment the plaintiffs appealed to this court.

The legal effect of the order appealed from has already been
determined by a decision of this court rendered on the 31st of October,
1903, in the case of Jose E. Alemany et al. vs. John C. Sweeney,^[1]
which was an action for mandamus to compel the said judge to allow an
appeal in this case. It was therein decided that the said order
“vacating the said appointment (in favor of the appellants) should be
considered as a judicial order removing them from office;”
and it must be so considered because the appointments had already taken
effect, the bond required by the court had been filed, and the
appointments had been actually issued in due form. The guardianship of
the minors had been, as a matter of fact and law, conferred upon the
appellants, and the setting aside of such appointments (it matters not
for what reason) was practically equivalent to a removal from their
respective offices. The terms of the order appealed from can not alter
the fact that the appellants in this case were actually removed from
office. Such was undoubtedly the immediate effect of the order, and it
should be considered an order removing them from office.

Section 574 of the Code of Civil Procedure provides as follows:

“Removal and resignation of guardian.—When
a guardian, appointed either by the testator or a court or judge,
becomes insane or otherwise incapable of discharging his trust or
unsuitable therefor, or has wasted or mismanaged the estate, or failed
for thirty days to render an account or make a return, the judge or
court may, upon such notice to the guardian as the judge or court may
require, remove him, and compel him to surrender the estate of the ward
to the person found to be lawfully entitled thereto.”

Such are the causes for which a guardian may be legally removed.
None of those enumerated in the above section existed for the removal
of these appellants. The order appealed from is not based upon any of
the grounds of removal contained in said section, and it does not
appear from the bill of exceptions before us that either of the
appellants came within the provisions of the said section. Therefore,
their removal was absolutely unwarranted, and the vacating of their
respective appointments, in so far as it tended to cause their removal
as a necessary and immediate effect, is unjust and illegal, and can not
be sustained under the law.

Neither the death of Juana Moreno nor the will left by her could
have justified the court in vacating the appointments made in favor of
the appellants, as the said court seems to have believed, judging from
certain statements contained in the order appealed from. In regard to
this point the following was said by this court in its judgment of the
31st of October, 1903, above cited:

“If it (the death of the guardian Juana Moreno)
preceded that appointment (of the appellants) the question of her
removal disappeared, the guardianship became vacant, and the court had
a right to fill it. If it followed the appointment, she had a right to
appeal from the order removing her. But this right terminated with her
death.”

The order appealed from is reversed, and the appointments made in
favor of Andrea Atayde and Jose E. Alemany, as guardian and
administrator, respectively, of the said minors Leandro Gruet and Maria
de la Paz Gruet, and their estate, are hereby held to be valid and in
full force and effect, in accordance with the order entered by the
trial court on the 6th of April, 1903; and it is ordered and adjudged
that they be given possession of the said offices upon filing a bond in
the sum of P25,000, as required in said order, without costs. After the
expiration of ten days from the date hereof let judgment be entered
accordingly and the case remanded to the trial court for execution
thereof. So ordered.

Arellano, C.J., Torres, Johnson, and Carson, JJ., concur.
Willard, J., did not sit in this case.

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^[1] 2 Phil. Rep., 654.