G.R. No. L-5294. September 30, 1953
LUISA AVECILLA VDA. DE CELIS, PETITIONER, VS. ASUNCION ROQUE VDA. DE LA SANTA AND THE HONORABLE COURT OF APPEALS, RESPONDENTS.
PADILLA, J.:
is an appeal by certiorari from a judgment of the Court of Appeals
affirming that of the Court of First Instance of Manila which annulled
the sale of a lot and the buildings erected thereon situated at Nos.
2191, 2193, 2195, 2197 and 2199 Rizal Avenue and 428 Batangas Street,
City of Manila, made by the executor, as authorized by the probate
court of Manila, to Luisa Avecilla Vda. de Celis, in so far as
one-seventh undivided share thereof is concerned, belonging to Asuncion
Roque Vda. de la Santa, for the reason that she was not notified of the
petition for authority to sell the lot and buildings erected thereon
and of the court order granting such authority to the executor.
The Court of Appeals made the following findings:
Plaintiff-appellee
Asuncion Roque Vda. de la Santa is one of the instituted heirs in the
will of her deceased brother, Teofilo Roque, together with her other
brothers and sisters, Marcela, Catalina, Sofronio, Joaquin, Manuela and
Francisco, all surnamed Roque, and was given a one-seventh (1/7)
undivided share in a house and lot located at Nos. 2191-2199 Rizal
Avenue and No. 428 Batangas Street, City of Manila. The said will was
allowed to probate in special proceedings No. 60588, of the Court of
First Instance of Manila. Sofronio Roque, one of the heirs, is the
executor of the estate.In Special Proceedings No. 60588, the following pertinent facts giving rise to this action appear undisputed:
- On November 10, 1942, a petition (Exhibit O) was filed by Ricardo de la
Santa praying that he be allowed to file such petitions, pleadings,
etc., as may be necessary for the protection of his mother’s (Asuncion
Roque) interest, as one of the heirs of the estate, attaching to said
petition the affidavit (Exhibit P), executed by appellee in favor of
her said son, Ricardo de la Santa, authorizing the latter to “represent
and act for my interest for the protection of my rights in the
proceedings, and to do any and all means to protect my interest.” On
the same date, Ricardo de la Santa also filed a motion (Exhibit Q)
praying that the administrator be compelled to pay to the Agricultural
and Industrial Bank the amount of P1,600 due from the deceased Teofilo
Roque. In both the aforesaid petition and motion, Ricardo de la Santa
gave as his address No. 428 Batangas Stree, Manila. Pending resolution
of said petition and motion, Ricardo filed with the said special
proceeding, a special power of attorney (Exhibit A), executed by
appellee Asuncion Roque, on November 13, 1942, granting the same power
conferred upon him by the affidavit (Exhibit P).- On December 4, 1942, the court issued an order (Exhibit B) denying the
petition (Exhibit O) on the ground that there was no showing that
Ricardo de la Santa was a duly authorized member of the bar. The court,
however, abstained from acting on his motion (Exhibit Q) which sought
to compel the administrator to pay the indebtedness of the estate to
the Agricultural and Industrial Bank.- On January 24, 1944, the late Judge Gervacio Diaz issued an order
(Exhibit C), wherein it was recited that the instituted heirs, with the
exception of Asuncion Roque who was very ill in the provinces, had
prayed for the sale of the house and lot in question for the price of
P350,000; that the administrator asked that the said authority be not
given until after 2 weeks, in view of the fact that Asuncion Roque had
not appeared before the court; and, that the difficulty of her
non-appearance might be avoided in view of the fact that Asuncion Roque
had already executed a special power of attorney (Exhibit A) in favor
of her son, Ricardo. The said order contained the provision that notice
should be given to Ricardo de la Santa, as attorney-in-fact of
appellee, of said petition and the hearing of the same which was reset
for January 28, 1944.- The
hearing of the petition above-stated, originally set for January 28,
1944, was postponed to February 11, 1944, by order of the court
(Exhibit D). In the said order, the court expressly stated that Ricardo
de la Santa should appear in court on the said date, February 11, 1944,
to express his conformity or non-conformity to the proposed sale.- On February 19, 1944, the court again issued another order (Exhibit F),
requiring the appearance in court of the heir-petitioners, together
with the administrator, Sofronio Roque, and Ricardo de la Santa, as
attorney-in-fact of Asuncion Roque, at 9:30 a.m., on February 25, 1944,
in order to manifest to the court as to the minimum as well as the
maximum price for which they wanted the property sold or whether to
employ a commission agent to sell the said property for the best price
obtainable.- On February 25,
1944, the late Judge Diaz issued another order (Exhibit G), which
authorized the administrator to sell the property for a price of not
less than P350,000 within one month from the date thereof, which
authority shall automatically be cancelled if the sale is not realized
within said period of time.- On
June 5, 1944, appellee Asuncion Roque filed a petition (Exhibit H),
dated May 21, 1944, at Boac, Marinduque, praying that since the order
to sell had not been carried out, which order was obviously motivated
by a reason, among others, of paying the mortgage debt of P1,600 to the
Agricultural and Industrial Bank, the personal properties of the estate
which were being concealed by the other heirs and administrator, and
undervalued by the latter at P2,053.83, should be sold and the proceeds
thereof to be applied to the payment of said debt. Although the said
petition was set for hearing on June 16, 1944, nothing appears in the
record of any action taken by the court thereon.- On June 6, 1944, that is, before the hearing of the petition of
appellee (Exhibit H), the other heirs, namely, Marcela, Joaquin,
Francisco, Catalina and Manuela again filed a motion (Exhibit I)
praying for new authority in favor of the administrator to sell the
property in dispute at a price ranging from P245,000 to P300,000.- On June 13, 1944, also before the date set for the hearing of
appellee’s petition (Exhibit H), former Judge Buenaventura Ocampo
issued an order (Exhibit J) authorizing the administrator to sell the
said property for not less than P245,000.- On June 21, 1944, the said Judge issued another order (Exhibit K)
approving the deed of sale of the property in controversy, executed by
the administrator in favor of defendant-appellant Luisa Avecilla Vda.
de Celis, for the price of P320,000, which order also authorized the
administrator to receive the purchase price from appellant and to
deposit one-half thereof in the Philippine National Bank.- On August 7, 1944, the final account of the administrator (Exhibit 5)
and the project of partition (Exhibit 2) were approved by the probate
court (Exhibit L).
(Exhibit M), in behalf of the administrator, alleging that Joaquin
Roque had arrived from Boac, and was demanding his share as well as
that of the co-heir Francisco Roque, and praying therefor authority to
withdraw the sum of P80,644.09 to pay the said co-heirs at P38,828.79
each, and also for the payment of the inheritance tax corresponding to
the share of appellee Asuncion Roque, which petition was granted by the
court in its order (Exhibit N).* * * * * * *
* * * As correctly found by the court a quo,
no copies of the orders (Exhibit E [should be D], F, G, J, K and N)
were received by appellee or her attorney-in-fact, in spite of the fact
that the orders (Exhibits E [should be D], F, G and J) contained
directives that notice of the same be served upon the appellee or her
attorney-in-fact. The copy of the order (Exhibit G), corresponding to
Ricardo, which order also contained a proviso that Ricardo be notified
thereof, was left by the sheriff in the hands of Manuela Roque, one of
the heirs. The copy of the order (Exhibit E [should be D]), which
likewise provided that Ricardo should appear in court, was not served
upon Ricardo because the sheriff was informed that he (Ricardo) was in
Boac, Marinduque, so that the copy corresponding to him was returned to
the court. The copy of the order (Exhibit F), which also required the
appearance of Ricardo at the hearing of the petition for authority to
sell the property, was not received by Ricardo, because, according to
the affidavit of the sheriff, Ricardo was then in Marinduque. In the
order of the court (Exhibit L), it is recited that Attorney Roman de
Jesus appeared in behalf of the administrator and co-heir, Sofronio
Roque, attorney J. P. Ozorio for the co-heirs Catalina, Manuela,
Marcela, Joaquin and Francisco, but the co-heirs Asuncion, Francisco
and Joaquin did not appear as they were all in Boac; that the co-heirs
present and their respective attorneys advised the court that there was
no objection on the part of the absent heirs to the approval of the
final account of the administrator (Exhibit 5) and the project of
partition (Exhibit 2) but, on the contrary, they knew that they all
desired the early termination of the testate proceedings.
The validity of a judgment or
order of a court entered in a special proceedings cannot be assailed
collaterally unless the ground for the attack is lack of jurisdiction
of the court entering such judgment or order or fraud by the party
sought to be charged with it in its procurement.[1]
If the nullity of the judgment or order assailed is for failure to
adhere to or comply with the statutory requirements which must be
followed before such judgment or order may entered, the remedy for the
aggrieved party is to appeal from such order of judgment, or, if final,
to apply for relief under Rule 38 which is also applicable to special
proceedings.[2] The order in
question in so far as Asuncion Roque Vda. de la Santa is concerned is
not final and executory because, as found by the Court of Appeals, she
has not been notified not only of the petition, filed not by the
executor but by five of the heirs and devisees named in the will of the
late Teofilo Roque duly probated, praying for authority to the executor
named in the will and duly appointed to sell the lot and buildings
erected thereon but also of the orders granting such authority and
approving the sale made by the executor pursuant to such authority.
Hence this action is improperly brought because the plaintiff has still
the remedy of appeal to assail directly the validity of the order.
The probate court that entered the orders complained of had
jurisdiction of the estate of the late Teofilo Roque and acquired
jurisdiction over the heirs, devisees or legatees and interested
persons, such as the creditors, of the deceased by their appearance and
by publication of the summons or notice to all interested persons to
appear in the proceedings for the probate of the will and settlement of
the estate of the deceased testator. The proceedings are binding upon
all parties not only upon those who appeared but also upon those who
failed to appear.
Before the promulgation of the Rules of
Court, section 718 of the Code of Civil Procedure provided that the
authority to be granted to the administrator or executor to sell
personal or real property of the estate of a deceased person when
beneficial to the heirs, devisees or legatees, must be with the consent
and approbation in writing of said heirs, devisees and legatees; and at
the hearing of the petition seeking authority to sell it, the executor
or administrator had to produce to the court such assent and approval
in writing signed by the heirs, devisees and legatees or by their
guardians, if minors, or otherwise under guardianship. The court
appointed a time and place of hearing for deciding upon such
application and was to require notice to be given of it and of the time
and place of hearing to the persons interested, and the notice was to
state the nature of the application and the reason for the same, the
time and place of hearing, and was to be published three weeks
successively previous thereto, in a newspaper of general circulation in
the neighborhood of those interested, to be designated by the court.[3] All such requirements were done away with by section 7, Rule 90, except as to notice. Paragraph (b) of said section provides:
The
court shall thereupon fix a time and place for hearing such petition,
and cause notice stating the nature of the petition, the reason for the
same, and the time and place of hearing, to be given personally or by
mail to the persons interested, and may cause such further notice to be
given, by publication or otherwise, as it shall deem proper;
Pursuant thereto, the notice caused by the court to be made may be
given to the person interested personally or by mail or by publication
or otherwise, as it shall deem proper. If the interested party to whom
the notice was mailed at his residence, as it appeared on the record of
the special proceedings, had absented himself therefrom and failed to
receive it, that fact would not deprive the court of the power to
proceed with the hearing of the petition of the executor or
administrator seeking authority to sell property of the estate of the
deceased and to grant and deny it. From the findings of the Court of
Appeals which recite the allegations set out in the motion filed by the
respondent Asuncion Roque Vda. de la Santa of 5 June 1944, by which she
objected, for the reasons therein stated, to the sale of the lot and
buildings in question, it appears that she had actual knowledge of the
application to sell the lot and buildings erected thereon. Such
knowledge is equivalent to notice. The question then that arises is:
Granting that she objected to the sale of the lot and buildings erected
thereon and her objection considered, as it must be presumed for it was
in the record of the special proceedings when the hearing of the
application for authority to sell was heard, but was disregarded, by
the probate court, could her objection be sufficient to prevent the
probate court from granting the executor authority to sell the
property? Unlike the statutory provisions before the promulgation of
the Rules of Court, which required the consent or approbation in
writing signed by the heirs, devisees, or legatees, without which the
court was powerless belonging to the estate of a deceased person,[4]
the Rules of Court do not deprive the probate court of the power to
grant license to the administrator or executor to sell personal or real
property of the deceased even if there be an objection to it by an
heir, devisee or legatee, provided that such license to sell will
redound to the benefit of the interested persons and hasten the winding
up or the final settlement of the estate. The doing away by the Rules
of Court with certain requirements which shackled and fettered the
hands of the probate courts in settling promptly and in the most
inexpensive manner the estate of deceased persons and writing up the
administration thereof evinces the intent of the framers of the rules
to grant more power to probate courts in dealing with the settlement
and administration of the estate of deceased persons. Under the Code of
Civil Procedure, partition of real estate assigned to two or more
heirs, devisees or legatees and held by them in common could be applied
to the court or judge having jurisdiction of the estate by any of the
co-owners, and such partition may bring about or result in the sale of
the real estate held in common despite objection to the sale by a
co-owner.[5] Under the Rules of Court, the partition must be by a proper action.[6]
But the result of such an action for partition independently of the
special proceedings could be the sale of the property even if one of
the co-owners would object to it. Consequently, neither the objection
of Asuncion Roque Vda. de la Santa to the application for authority to
sell the lot and buildings erected thereon belonging to the estate of
the deceased Teofilo Roque nor the failure to receive the notice of
such application caused to be served upon her personally or upon her
son Ricardo de la Santa as her attorney-in-fact, it appearing that she
had actual knowledge thereof, is sufficient legal cause to annul the
sale, because the probate court had authority under the provisions of
sections 4 and 7, Rule 90, to grant authority to the executor or
administrator to sell the property of the deceased.
The
judgment of the Court of Appeals appealed from is reversed and the
complaint of the respondent Asuncion Roque Vda. de la Santa, dismissed,
without costs.
Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.
Paras, C.J., no part.
[1] Anuran vs. Aquino and Ortiz, 38 Phil. 29; Gomez vs. Concepcion, 47 Phil. 717; Garchitorena et al. vs. Sotelo, 74 Phil. 25; Almeda et al. vs. Cruz, 47 Off. Gaz. 1179, 84 Phil. 636; Ang Lam vs. Rosillosa et al., 47 Off. Gaz., Supp. No. 12, 103.
[2] In re Estate of Johnson, 39 Phil. 156; Reyes vs. Gonzales et al., 47 Phil. 339; Oñas vs. Javillo, et al., 54 Phil., 602.
[3] Sections 718 and 722, Act No. 190.
[4] Section 722, paragraph 3, Act No. 190.
[5] Section 762, Act No. 190.
[6] Section 3, Rule 91, Rules of Court.