IN RE PETITION FOR PROBATE AND ADMINISTRATION OF THE WILL OF PAULA TIANGCO, DECEASED. MANUEL EUGENIO, PETITIONER AND APPELLANT, VS. JOSE TIANGCO, OPPOSITOR AND APPELLEE.

Paula Tiangco died in Malabon, Rizal, on September 27, 1947,
leaving properties allegedly worth less than P30,000. She is survived by her
husband Dr. Benito Cruz, a sister, and nine nephews and nieces.

In or about October, 1947, Jose Tiangco, one of the surviving
nephews, instituted intestate proceeding No. 442 in the Court of First Instance
of Rizal and applied for letters of administration of the estate of the
deceased. Manuel Eugenio, Purificacion Eugenio, Abelardo Eugenio, and Milagros
Eugenio, other nephews and nieces of the deceased, opposed Tiangco’s petition
for letters of administration, alleging that the deceased in her lifetime had
executed a will which, according to their knowledge, information, and belief,
was then in the possession of the surviving husband, Dr. Benito Cruz, and prayed
that the latter be required to produce the last will and testament of the
deceased for probate by the court.

In view of that allegation, Judge Oscar Castelo ordered Dr.
Benito Cruz to appear before the court on November 27, 1947, at nine a.m., and
to produce the last will and testament of Paula Tiangco. In compliance with that
order Dr. Benito Cruz appeared before the court and manifested that he had no
knowledge of the existence of the alleged will and that he never had it in his
possession. In view of that manifestation the court ordered the oppositor Manuel
Eugenio to present evidence of the existence and due execution of the alleged
will.

After hearing the evidence adduced by the oppositor, Judge
Castelo entered an order on December 20, 1947, declaring that it had not been
proven that the deceased Paula Tiangco had left a will and appointing Jose
Tiangco administrator of the properties left by her.

Instead of appealing from said order Manuel Eugenio, on January
24, 1948, filed a petition in the same court for the “probate and administration
of the will of Paula Tiangco,” alleging that the deceased executed a last will
and testament sometime in the year 1943 and that said last will and testament
“has been and still is in the possession of her surviving husband, Dr. Benito
Cruz,” and praying that the latter be ordered to produce and present to the
court the last will and testament of the deceased Paula Tiangco so that it might
be probated, and that letters testamentary be issued to the petitioner. In view
of that petition Judge Ambrosio Santos ordered Dr. Benito Cruz to deliver said
last will and testament to the clerk of court within five days.

The respondent Dr. Benito Cruz informed the court in writing
that he had no knowledge of the existence of the alleged will and that he never
had it in his custody; that the nonexistence of said will was res
judicata, the same question having been submitted to and decided by the
court in intestate proceeding No. 442, from which decision or order the
petitioner Manuel Eugenio had not appealed. In view thereof, respondent Benito
Cruz asked for the dismissal of the petition for probate. To said petition for
dismissal the respondent attached the pleadings, the transcript of the evidence,
and the order of Judge Castelo in intestate proceeding No. 442.

After considering the written arguments of both parties on the
motion for dismissal, Judge Ambrosio Santos entered an order sustaining said
motion and dismissing the petition for probate. The case is now before us on
appeal from said order.

Appellant contends that the trial court erred in dismissing his
petition for probate, and cites section 1 of Rule 83, which reads as
follows:

“SECTION 1. Administration revoked if will discovered.
Proceedings thereupon.—If after letters of administration have been granted
on the estate of a decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be revoked and all
powers thereunder cease, and the administrator shall forthwith surrender the
letters to the court, and render his account within such time as the court
directs. Proceedings for the issuance of letters testamentary or of
administration under the will shall be as hereinbefore
provided.”

There can be no question that under the above-quoted provision
of the Rules of Court, if the appellant had found the alleged will and had
proved its due execution, the letters of administration issued to the herein
appellee Jose Tiangco in intestate proceeding No. 442 would have been revoked
and said intestate proceeding would have been converted into a testamentary
proceeding. But appellant had not done so. He did not even allege that he had
found the supposed will. In his petition for probate he merely repeated and
sought to litigate anew his contention in intestate proceeding No. 442 that the
surviving husband, Benito Cruz, had the alleged will in his possession, and
again asked the court to order him to produce it.

Having been raised in issue and finally decided adversely to
the herein appellant in intestate proceeding No. 442, that same question of
whether or not Benito Cruz had the alleged will in his possession cannot be
litigated anew. To countenance the procedure adopted by the appellant would be
to permit him to trifle with the court and harass his opponent.

There is no analogy between the present case and that of
Cartajena vs. Lijauco and Zaballa, 38 Phil., 620, cited and relied upon by the
appellant. The question presented in that case, as stated by the Court, was:
“May an administrator of an estate of a deceased person continue to administer
the estate after a will of such deceased is proved and allowed?” In that case,
pending petition by Lijauco and Zaballa for the appointment of an administrator
of the estate of the deceased Tomasa Nepomuceno, Cartajena presented a will in
the court and asked that it be admitted to probate. Lijauco and Zaballa were
appointed administrators, but after the will was admitted to probate the letters
of administration theretofore granted to Lijauco and Zaballa were revoked, in
conformity with section 657 of the Code of Civil Procedure, now section 1 of
Rule 83.

Counsel for the appellant has misunderstood the above-cited
rule. Applied to this case, it clearly means that notwithstanding the letters of
administration issued in intestate proceeding No. 442, if the appellant or any
other interested party could produce a will of the deceased and could prove its
due execution, letters testamentary or of administration would be issued and the
appointment of appellee Jose Tiangco as administrator would be revoked.

The order appealed from is affirmed, with costs.

Moran, C.J., Paras, Feria, Padilla, Tuason, Montemayor,
and Reyes, JJ., concur.