GIACOMINA MARINI-GONZALES, PETITIONER, VS. HON. GUARDSON R. LOOD, PRE­SIDING JUDGE, COURT OF FIRST INSTANCE OF RIZAL, SIXTH BRANCH PASIG, RIZAL; CELIA ANGELES-­PASCUA; ELISEO ZA…

PADILLA, J.:

This is a petition for certiorari to annul and set
aside the orders issued by the respondent Judge in Civil Case no. 12296 of the
then Court of First Instance of Rizal, Pasig Branch VI, on (1) 12 February 1972,
which denied petitioner’s Omnibus Motion; (2) 25 March 1972, appointing the
respondent Eliseo Zari, assistant clerk of court of respondent court, as the
legal representative of the deceased defendant Rafael J. Gonzales; (3) 14 April
1972, which denied petitioner’s motion for reconsideration of the Order dated 12
February 1972; and (4) 17 May 1972, which denied petitioner’s motion for
reconsideration of the Order dated 25 March 1972.

The records show that
on 19 September 1969, the herein petitioner, Giacomina Marini-Gonzales, now
deceased and represented by the special administrator of her estate, Atty.
Norberto J. Quisumbing,^[1] filed a
complaint against her husband Rafael J. Gonzales and Celia Angeles-Pascua,
Esteban S. Angeles, Rogelio S. Angeles, Sinforesa Salvador-Angeles, Remedios
Angeles-Ferraer, Florencio Ferraer, Jaime Angeles, Benjamin Angeles, Merlina
Torres-Angeles, and Lourdes Angeles-Acabe and her husband whose first name is
unknown to the plaintiff, in the then Court of First Instance of Rizal, docketed
as Civil Case no. 12296, for the annulment of allegedly fraudulent disposition
of various properties, both real and personal, therein listed, made by the said
Rafael J. Gonzales in favor of his co-defendants, allegedly in fraud of
plaintiff and in impairment of her interest in the conjugal partnership
properties, and without her knowledge and consent.  The complaint also asked for
damages.^[2]

In answer, the
defendant Rafael J. Gonzales claimed that all the conjugal assets which are in
his possession were not used in any way for or transferred to the other
defendants; and that the properties owned by his co?defendants were not derived
from the conjugal properties owned by him and the plaintiff.^[3]

His co-defendants, for their part,
alleged that the properties listed in the complaint were bought or acquired, not
with funds from the conjugal partnership of plaintiff and defendant Rafael J.
Gonzales, but with funds of the owners thereof.^[4]

Pre-trial conferences were held,
and thereafter, the deposition of the defendant Rafael J. Gonzales was taken in
view of his deteriorating health.  The taking of his deposition, however, was
not completed because he died on 5 September 1970.

On 25 September 1970,
the herein petitioner, in a pleading entitled “Notice of Death of Party and
Omnibus Motion” notified the court of the death of the defendant Rafael J.
Gonzales and of her appointment by the then Court of First Instance of Rizal
(Quezon City branch) in Special Proceeding No. Q-14838 as special administratrix
of his testate estate, and prayed that she be substituted in place of the
deceased; that the pleadings, motions and papers, including the Answer with
Counterclaim filed by the decedent, be withdrawn and stricken out; and that she
be granted leave to amend her own complaint so as to allege therein her two
capacities and rights — one, as wife and two, as special administratrix of the
testate estate of the late Rafael J. Gonzales.^[5] Later, the probate court appointed said
plaintiff (herein petitioner) as executrix in the testate estate of the late
Rafael J. Gonzales.^[6] She is also the
sole heir under his will.^[7]

Considering the Omnibus Motion,
respondent Judge ordered the parties “to submit their amended pleading in
accordance with the Rules of Court within a period of as soon as possible.”^[8]

Pursuant thereto, the petitioner
filed a “Compliance and Motion” reiterating her prayer for the immediate grant
of her Omnibus Motion filed earlier.  A copy of an Amended Complaint was
appended to her motion.^[9]

The
respondent Judge, however, in an Order dated 12 February 1972, denied the
Omnibus Motion for lack of merit.^[10]
Counsel for the petitioner received a copy of the Order on 26 February 1972, and
on 25 March 1972, he filed a motion for reconsideration of said Order.^[11]

On that same day, 25 March 1972,
the respondent Judge, upon motion of the herein private respondents, issued an
Order appointing Atty. Eliseo Zari, the assistant clerk of court, the legal
representative of the defendant Rafael J. Gonzales in the case.^[12] Upon receipt of a copy of this Order,
counsel for the petitioner also filed a motion for its reconsideration, and when
both motions for reconsideration were denied on 14 April 1972^[13] and 17 May 1972,^[14] respectively, he filed the instant
petition for certiorari with this Court.

The petition was given
due course^[15] and on 20 March 1973, this
court, upon application of the petitioner, issued a temporary restraining order
restraining the respondent Judge from proceeding with the initial reception of
evidence in Civil Case no. 12297 of the Court of First Instance of Rizal, Branch
VI, Pasig.^[16]

The first issue
raised by the petitioner is whether or not the respondent Judge acted with grave
abuse of discretion in denying the proposed amendment to the petitioner’s
complaint to the end that she, as special administratrix, later, executrix of
the testate estate of her late husband Rafael J. Gonzales, be allowed to
withdraw the Answer with Counterclaim filed by said deceased during his lifetime
and then join cause with her, as plaintiff.

The law applicable is Section
1, Rule 10 of the Rules of Court which provides as follows:

“Sec. 3.  Amendments by leave of Court — After the
case is set for hearing, substantial amendments may be made only upon leave of
court.  But such leave may be refused if it appears to the court that the motion
was made with intent to delay the action or that the cause of action or defense
is substantially altered.  Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.”

Likewise applicable is the law on estoppel to the effect that
—

“A party who has, with knowledge of the facts, assumed a
particular position in judicial proceedings, and has succeeded in maintaining
that position, is estopped to assume a position inconsistent therewith to the
prejudice of the adverse party.  It is essential also that the party, claiming
the estoppel should have acted in reliance thereon, and that his rights would be
injuriously affected if his opponent were permitted to change his position. 
When no wrong is done a change in position should and will be allowed.  The rule
has no application where the knowledge or means of knowledge of both parties is
equal, nor in case of mistake.  Also the rule has no application to change a
position with respect to matters of law.”^[17]

There is no doubt that the proposed amendments to the
petitioner’s complaint would alter the position of Rafael J. Gonzales, from that
of defendant to that of plaintiff.  But, while the aforequoted provisions of the
Rules of Court authorize the courts to disallow amendment of pleadings when it
appears that the same is made to delay an action or that the cause of action or
defense is substantially altered thereby, the rule is not absolute.  Courts are
not precluded from allowing amendments of pleadings even if the same will
substantially change the cause of action or defense provided that such
amendments do not result in a substantial injury to the adverse party.  This is
due to the permissive character of said rule.  In fact, this court has ruled
that amendments to pleadings are favored and should be liberally allowed in the
furtherance of justice.^[18]

The
same is true with the principle of estoppel, just mentioned.  It is essential
that the rights of the adverse party would be seriously affected in order to
disallow a change in position, but, when no wrong is done, a change in position
may be allowed.

We have examined the records of this case and we find no
reason, nor have the private respondents shown any, which would serve as a basis
for a finding that they (private respondents) would suffer substantial injury if
the proposed amendments were allowed.  The mere change in the position of the
deceased Rafael J. Gonzales, from defendant to plaintiff, will not, by itself,
lend credence to the allegation of the petitioner in her complaint that the
properties listed in the complaint belonged to the conjugal partnership of the
petitioner and Rafael J. Gonzales and that they were fraudulently transferred to
the private respondents, nor will it diminish the private respondents’ claim
that the said properties were bought or acquired by them with their own funds. 
The parties, in fact, have yet to prove their respective allegations.

On
the other hand, to disallow the amendments proposed by the petitioner would
result in some absurdity.  As wife and then as executrix and sole heir of the
late Rafael J. Gonzales, the petitioner would be ‘giving with one hand and also
receiving with the other’, in the event that judgment were to be rendered for or
against the deceased defendant.

The other issue raised is whether or not
the respondent Judge abused his discretion in ordering the respondent Eliseo
Zari to represent the deceased Rafael J. Gonzales as party defendant in this
case.  The petitioner contends that the appointment of another legal
representative for the late Rafael J. Gonzales is null and void in view of her
appointment as the special administratrix, later, executrix of the testate
estate of Rafael J. Gonzales, not to mention that she is the sole heir under his
will.^[19]

We agree with
petitioner’s contention.  Under the provisions of Section 2, Rule 87 of the
Rules of Court, it is the executor or administrator of the estate of the
decedent who may bring or defend actions in the name of the deceased, and this
Court has ruled that the choice of an executor is the sole prerogative of the
testator and is not addressed to the discretion of the court.  In the case
of Ozaeta vs. Pecson,^[20] this
Court said:

“The choice of his executor is a precious prerogative of a
testator, a necessary concomitant of his right to dispose of his property in the
manner he wishes.  It is natural that the testator should desire to appoint one
of his confidence, one who can be trusted to carry out his wishes in the
disposal of his estate.  The curtailment of this right may be considered as a
curtailment of the rights to dispose.  And as the rights granted by him will
take effect from the time of his death (Article 777, Civil Code of the
Philippines), the management of his estate by the administrator of his choice
should be made as soon as practicable, when no reasonable objection to his
assumption of the trust can be interposed any longer.  It has been held that
when a will has been admitted to probate, it is the duty of this court to issue
letters testamentary to the person named as executor upon his application (23
C.J. 1023).  It is the testator that appoints his executor, as the question as
to his peculiar fitness for such position or his want of ability to manage the
estate cannot be addressed to the discretion of the county judge. (Holbrook
vs. Head, 6 S.W. 592, 593, 9 Ky 755).”

Furthermore, the joinder of the deceased Rafael J. Gonzales as
party defendant is no longer necessary and may be dispensed with, since no
cross-claim has been filed against him by his co-defendants (private respondents
herein); and the petitioner’s right under Article 173 of the Civil Code may be
enforced against third persons even without joining her husband as party
defendant.

We find from all the foregoing, and so rule, that the
respondent Judge gravely abused his discretion in denying the petitioner’s
Omnibus Motion.  Courts should be liberal in allowing amendments to pleadings,
especially where such amendments will serve the ends of justice and avoid
multiplicity of suits.

WHEREFORE, the petition is
GRANTED and a writ issued, annulling and setting aside the Orders issued by the
respondent Judge in Civil Case no. 12296 of the then Court of First Instance of
Rizal, Branch VI, Pasig, on 12 February 1972, 25 March 1972, 14 April 1972, and
17 May 1972.  The temporary restraining order, earlier issued by this Court, is
hereby made permanent.  Costs against private respondents.

SO ORDERED.

Fernan, (Chairman),
Gutierrez, Jr., Paras, Bidin, and Cortes, JJ., concur.

Alampay, J., no part (did not participate in the deliberation; he
was then on official leave).