PACIENCIA DE JESUS ET AL., PETITIONERS, VS. INIGO S. DAZA, JUDGE OF FIRST INSTANCE OF BATANGAS, ET AL., RESPONDENTS.

HILADO, J.:

Petitioners pray for the writs of certiorari and mandamus whereby they would
have this Court annul the order of the respondent judge dated January 29, 1946,
entered in civil case No. 3174 of the Court of First Instance of Batangas in the
matter of the estate of the deceased Gavino de Jesus, which order petitioners
denominate “a writ of possession,” and command the respondent provincial sheriff
of Batangas and the respondents Justina S. Vda. de Mang-Japus and Gregorio
Leynes to return to said petitioner? the possession of the two parcels of land
covered by original certificates of title Nos. 1292 and 1344, issued by the
Register of Deeds of Batangas and mentioned in their petition.

Among other things, it is alleged in the petition and admitted in the
respondents’ answer that petitioners are some of the testamentary heirs of the
late Gavino de Jesus whose estate is the subject matter of the aforesaid special
proceeding No. 3174; that respondent Justina S. Vda. dc Manglapus purchased from
Sixto de Jesus and Natalia Alfonga, co-heirs of the petitioners, the rights,
interest, and participation of the said Sixto de Jesus and Natalia Alfonga, in
the said testate estate, particularly, the two parcels of land above referred
to, which parcels of land were assigned to the said Sixto de Jesus and Natalia
Alfonga as their shares in the same testate estate in the project of partition
which was already submitted to the probate court for approval—according to the
respondent judge’s order of March 11, 1946 (Appendix 1 of respondents’ answer)
it had already been approved;—that on September 4, 1945, when the project of
partition was approved, respondent Justina S. Vda. de Manglapus, presented
within the special proceeding a petition for approval by the probate court of
said sale to her of the right, interest, and participation of Sixto de Jesus and
Natalia Alfonga, particularly, of the said two parcels of land; that the probate
court approved said sale; that on September 9, 1945, “after learning of the
aforesaid sale on September 4, 1945,” petitioners instituted an action in the
Court of First Instance of Batangas against respondent Justina S. Vda. de
Manglapus for legal redemption under article 1067 of the Civil Code, said action
being civil case No. 3960 of the Court of First Instance of Batangas—in
connection with this action for legal redemption, respondents in paragraph 4 of
their answer, after admitting the institution of said action for legal
redemption, allege that on March 11, 1946, the Court of First Instance of
Batangas issued an order dismissing the amended and supplemental complies in
said civil case No. 3960 (they attach a copy of the order of dismissal as
Appendix 1 of their answer), but petitioners in their reply aver that within the
period prescribed by law they had perfected an appeal from said order of
dismissal.

From what appears in the allegations of the parties, as well as their
appendices and annexes, the said case for legal redemption is still pending
appeal.

Respondent Justina S. Vda. de Manglapus, by a petition dated January 17, 1946
(Annex A of petition) filed in the testate estate of the deceased Gavino de
Jesus alreadv alluded to, asked the Court of First Instance of Batangas to order
the provincial sheriff of said province to take immediate possession of the
parcels of land in controversy and to deliver them to her afterwards. The
respondent judge, acting upon said motion, entered- his order of January 29,
1946 (Annex B-1 of petition) in the same estate proceeding whereby he directed
the said provincial sheriff “to make the physical delivery of the parcels of
land acquired by purchase by Justina S. Vda. de Mang-lapus to the authorized
representative, Dr, Gregorio Leynes of Balaynan, Batangas,” In compliance with
said order, the provincial sheriff addressed a notice to Sixto de Jesus, Felina
de Jesus, Elena de Jesus, Paciencia de Jesus (the last four being the present
petitioners) in which he advised them of the aforesaid order of January 29,
1946, attaching a copy thereof to his notice, and required them to be present at
the municipal building of Balayan, Batangas, where the said delivery of
possession was to take place on February 15, 1946, at 9 o’clock a. in., and in
paragraph 6 of the petition, petitioners themselves allege that on February 15,
1946, the respondent provincial sheriff of Batangas “did deliver possession of
said two parcels of land to the respondent Gregorio Lcyncs, representative of
respondent Mrs. Justina S. Vda. de Manglapus.”

In this connection it is asserted in paragraph 6 of the respondents! answer
that when the provincial sheriff of Batangas delivered the possession of the two
parcels of land in question to respondent Gregorio Leynes as such representative
of respondent Justina S. Vda. de Mang-lapus “no objection whatsoever was made by
the petitioners.”

The principal question raised by the petitioners is whether or not the
respondent judge, presiding the probate court, had jurisdiction to order the
delivery of the possession of the aforesaid parcels of land to respondent
Justina S. Vda. de Manglapus, represented by her authorized representative,
Gregorio Leynes, within the same estate proceeding and not in an independent
ordinary action.

Rule 91, section 1, provides in “part as follows:

“SECTION 1. When order for distribution of residue wade. Testimony taken
on controversy preserved.—When the debts, funeral charges, and expenses of
administration, the allowances to the widow, and inheritance tax, if any,
chargeable to the estate in accordance with law, have been paid, the court, on
the application of the executor or administrator, or of a person interested in
the estate, and after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and the proportions, or
Darts, to which each is entitled. and such persons may demand and
recover their respective shares from the executor or administrator, or
any other person having the same in his possession. * * *” (Italics
supplied.)

From the admitted fact that the portable court had already approved that
project of partition without any reservattion as to payment as to payment of
debts, funeral charges, expenses of administration, allowances to the widow, of
inheritance tax, it would appear that the estate was ready for distribution,
pursuant to Rule 91, section 1. Neither party has made any representation to the
contrary in this case. Upon this hypothesis, this case will be decided.

The very fact that petitioners lodged an action for legal redemption with the
Court of First Instance of Batangas, thus commencing civil case No. 3960 of said
court, carries with it an implied but necessary admission on the part of said
petitioners that the sale to respondent Justina S. Vda. de Manglapus of the
shares of Sixto de Jesus and Natalia Alfonga in the oft-repeated estate,
particularly, the two parcels of land in question, was valid. The sale was duly
approved by the probate court. By the effects of that sale and its approval by
the probate court the purchaser stepped into the shoes of the sellers for the
purposes of the distribution of the estate, and Rule 91, section 1, confers upon
such purchaser, among other rights, the right to demand and
recover the share purchased by her not only from the executor or
administrator, but also from any other person having the same in his
possession. It is evident that the probate court, having the custody and control
of the entire estate, is the most logical authority to effectuate this provision
within the same estate proceeding, said proceeding being the most convenient one
in which this power and function of the court can be exercised and performed
without the necessity of requiring the parties to undergo the inconvenience,
delay and expense of having to commence and litigate an entirely different
action. There can be no question that if the executor or administrator has the
possession of the share to be delivered the probate court would have
jurisdiction within the same estate proceeding to order him to deliver that
possession to the person entitled thereto, and we see no reason, legal or
equitable, for denying the same power to the probate court to be exercised
within the same estate proceeding if the share to be delivered happens to be in
the possession of “any other person,” especially when “such other person” is one
of the heirs themselves who are already under the jurisdiction of the probate
court in the same estate proceeding.

The probate proceeding over the testate estate of the deceased Gavino de
Jesus was a proceeding in rem (Manalo vs. Paredes and Philippine Food Co., 47
Phil., 938; 40 Cyc, 1265; 23 C. J., 1006, section 27; Michigan Trust Co. vs.
Ferry, 175 Fed., 667, 674; 99 C. C. A., 221). And by the publication of the
notice prescribed by the Rules and by the fact that petitioners herein were and
are among the testamentary heirs of the decedent, they were and are subject to
the jurisdiction of the Court of First Instance of Batangas sitting as a probate
court when the said court’s order of January 29, 1946, was entered and
thereafter. If, even the action for compulsory recognition of a natural child
may be instituted and decided within the proceeding for the settlement of the
estate of the ancestor (Severino vs. Severino, 44 Phil., 343, 348), it would be
absurd were we to declare now that for the mere object of ordering the delivery
of possession of a portion of the inheritance which has already been assigned to
a certain person within the estate proceeding, the probate court lacks
jurisdiction to make the order within the same proceeding, but should require
the institution of an independent ordinary action.

To be sure, petitioners, by the notice which from aught that appears from the
record, they must have been given of the hearing on the approval of the project
of partition, and their consequent right to present their opposition or
objections thereto, as well as the presentation of any necessary evidence which
they might have offered in support of such opposition or objections, had their
day in court, no less than if the questions raised thereby had been litigated in
a separate action. Indeed, the action for compulsory recognition of a natural
child would involve more contentious matters, and normally a greater amount of
evidence, than the mere incident involved in the petition of respondent Justina
S. Vda. de Manglapus within the testate estate of Gavino de Jesus for the
delivery to her of the possession of the parcels of land in controversy. And
yet, this Court has held in Severino vs. Severino (supra), and other
cases which need not be cited, that such action for compulsory recognition may
be instituted and decided within the proceeding for the settlement of the estate
of the ancestor.

It may be asked, however, if it would not be more just and proper to withhold
possession from the purchaser, the respondent Justina S. Vda. de Manglapus,
pending the final outcome of civil case No. 3960 of the Court oi First Instance
of Batangas wherein petitioners are seeking the legal redemption of the parcels
of land in controversy. We have carefully considered this phase of the case and
have come to a conclusion adverse to petitioners. Among other reasons, the
following brought us to our conclusion:

1. As already stated, the very interposition of the action for legal redemption
   necessarily implies admission of the validity of the sale.

2. Article 1067 of the Civil Code, rather than justifying the withholding of
   the possession from the purchaser, clearly sanctions his taking possession of
   what he has purchased, as his rights are absolute until and unless resolved by
   the timely and valid exercise of the right of redemption.

3. The sale to respondent Justina S. Vda. de Manglapus of the two parcels of
   land in question by Sixto de Jesus and Natalia Alfonga took place after the
   project of partition had been approved by the court (order of the probate court
   of March 11, 1946, in civil case No. 3960, the legal redemption case, Appendix 1
   of respondents’ answer), on account of which article 1067 of the Civil Code
   cannot support petitioners’ claim, said article referring to a sale by any of
   the heirs of his hereditaxy right to a stranger before partition. But
   even supposing that the approval of the project of partition by the court was
   made after the sale to respondent Justina S. Vda. de Manglapus of said two
   parcels of land by Sixto de Jesus and Natalia Alfonga, still that approval
   related back to the date of the project of partition.

   “To give ‘approval’ is in its essential and most obvious meaning to
   confirm, ratify, sanction, or consent to some act or thing done by another.
   State vs. Rhein, 127 N. W., 1079, 1081; 149 Iowa, 76.” (3 Words and Phrases,
   Permanent Edition, 829.)

   ” ‘Ratification’ operates upon the act ratified precisely as though authority
   to do the act had been previously given, except where the rights of third
   parties have intervened between the act and the ratification. The retroactive
   efficacy of the ratification is subject to this qualification. * * *” (30 Words
   and Phrases, Permanent Edition, 131.)

   Unquestionably, petitioners are not “third persons” as regards the project of
   partition and its approval by the court, for the simple reason that they, as
   co-heirs, were parties to the same project of partition as well as to the case
   wherein the same was approved, so that the rule of Jaw that approval or
   ratification relates back to the date of the act approved or ratified applies to
   its full extent.

4. If petitioners were in possession of the controverted parcels of land some
   time during the Japanese occupation, as seems to have been intimated in this
   case, their possession was merely precarious and, of course, in such a case they
   were acting at their risk. The petition does not allege that any reservation at
   all was made, or caused to be made, by petitioners in the project of partition
   as regards any crop of sugar cane that they might have planted on the two
   parcels of land in question. If they had planted such a crop, as represented in
   their memorandum (which, of course, can not take the place of evidence), they
   did so precariously and at their risk, and the fact that they do not allege
   having reserved any claim or right thereto in the project of partition, or in
   relation thereto, justifies the conclusion that they must have waived any such
   claim or right in consideration of the terms and conditions of the project of
   partition stipulated in their favor.

5. Even in a proper case of legal redemption, to allow the rcdemptioner to have
   possession of the property pending final judgment in the case may lead to a
   positive injustice towards the purchaser—the redemptioner may in the meantime
   enjoy the use or usufruct of the property and even if the case is finally
   decided in his favor, he may allege that he has no means of exercising the right
   of redemption and, therefore, is forced to waive it, which, of course, would
   redound to the positive detriment and prejudice of the purchaser and to the
   enrichment of the redemptioner at the former’s expense.

We, therefore, conclude that, without prejudice to the final result of the
legal redemption case, the instant petition should be, as it is hereby,
dismissed, with costs to petitioners. So ordered.

Moran, C. J., Pablo,
Brioncs, Padilla, and Tuason, JJ.,

DISSENTING

PERFECTO, J., with whom concurs PARAS, J.:

In special proceedings No, 3134 of the Court of First Instance of Batangas,
two parcels of land situated in Ba-layan, covered by original certificates of
title Nos. 1292 and 1344, were assigned to Sixto de Jesus and Natalia Alfonga as
their shares, as heirs of the late, Gavino de Jesus.

On September 4, 1945, when the project of partition was approved, respondent
Manglapus presented a petition for’ the approval of the sale to her of said
parcels of land by the heirs of Sixto de Jesus and Natalia Alfonga. The sale was
approved.

Upon learning of the sale, five days later, on September 0, petitioners filed
a civil action as co-heirs for legal redemption under article 1067 of the Civil
Code.

More than four months later, on January 17, 1946, Manglapus filed in the
probate case a petition for the court to order the sheriff to make physical
delivery of the parcels of land to her on account of the fact that petitioners,
who are the occupants, would not vacate them. On January 29, the respondent
judge ordered the issuance of the writ of possession prayed for, and on February
15, the sheriff delivered the*two parcels of land to Gregorio Leynes,
representative of Manglapus.

In praying for the writ of possession, Manglapus alleged that the judicial
administrator, Sixto de Jesus, notwithstanding an order dated January 4, 1946,
refused to intervene regarding the delivery of the two parcels of land to said
Manglapus.

Petitioners were in possession of the parcels of land since the first half of
1944, when they evacuated thereto for the purpose of keeping themselves away
from the Japanese; and, because of hard times, made plantings thereon, as the
administrator Sixto de Jesus could not attend to the lands on account of the
fact that he was living in Manila, and the petitioners had still unharvested
sugar crop on the lands when the possession thereof was delivered by tho sheriff
to Gregorio Leynes.

On April 12, 1944, Sixto de Jesus, by himself and as attorney in fact for his
mother and co-heir Natalia AI-fonga, executed a deed of promise to sell to
respondent Manglapus the rights, interests, and participation, among others, on
the two above-mentioned parcels of land, and on August 9, 1944, executed a deed
of absolute sale of the two parcels of land to Manglapus in consideration of the
sum of 1*5,000 which said respondent promised to pay.

Although in the order of the lower court dated March 11, 1946 (Appendix 1), a
pronouncement is made to the effect that no absolute sale had been consummated
before September 4, 1945, but simply a promise to sell, it is a fact that the
pronouncement can not prevail over the unequivocal statement made by respondent
Manglapus, through her attorneys, in her reply to the petitioners’ memorandum
dated April 17, 1946, wherein it is expressly stated that Sixto de Jesus, in his
own behalf, and as attorney in fact for his mother, “executed a deed of absolute
sale in favor of said respondent” Manglapus.

Upon the facts in this case, it seems evident that petitioners are entitled
to the redemption sought by them under article 1067 of the Civil Code.

“ART. 1067. If either of the heirs should sell his hereditary rights to a
stranger before the partition, any or all of his co-heirs-may be subrogated to
the rights of the purchaser by reimbursing him for the purchase price, provided
it be done within the period of one month, to be counted from the time they were
informed thereof.”

Therefore, it seems more proper not to disturb petitioners in the actual
possession of the two parcels of land in question until the civil action for
redemption shall have been finally decided, much more taking into consideration
the fact that the judicial administrator, Sixto de Jesus, refused to intervene
in the delivery of said two parcels, and petitioners, at the time the order
complained of was issued, had in said parcels of land sugar crop to be
harvested.

The order of January 29, 1946, causing the issuance of the writ of execution
complained of, if not utterly illegal was, at least, issued with grave abuse of
discretion, and if can not be justified under the.provisions of section 1 of
Rule 91 of the Rules of Court, which authorize the recovery by the heirs of
their respective shares from the executor or administrator, or any other person
having the same in his possession. The right is not executory when there is a
controversy concerning said possession. Of course, if the share is in the
possession of either the administrator or executor, who are both officers of the
court, either of them may be compelled by the court-to deliver it to the
respective heirs. In the present case, the parcels of land in question were not
in the possession of any officer of the court, petitioners not being either
executors or administrators. Section 1 of Rule 91 only recognizes the right of
the heirs to “demand and recover” but that right, when there arc conflicting
claims, can only -be enforced by proper judicial proceedings in which all the
parties shall have their day in court.

Our vote is for the granting of the
petition.

RESOLUTION ON MOTION FOR RECONSIDERATION

November 13, 1946

HlLADO, J.:

Petitioners’ counsel has filed a “petition for reconsideration” dated
September 11, 1946, asking this Court to reconsider its decision in the instant
case. In said petition counsel attacks the jurisdiction of the probate court to
issue its order of January 29, 1946, directing the provincial sheriff “to make
the physical delivery” of the parcels of land in question to respondent
Manglapus. In support of his stand counsel avers that nowhere in the Sules
regarding settlement of estates of deceased persons can there be found a
provision authorizing the probate court to issue such an order. This contention
is untenable because that power is necessarily embodied in Rule 91, section 1,
as already declared in our decision.

Petitioners are attempting to impugn the validity of said order of January
29, 1946, by claiming the right to possess the said parcels of land. It will be
recalled that, by its order of September 4, 1945, the probate court approved the
project of partition in the testamentary estate of Gavino de Jesus. On that same
day the court approved the sale of the two parcels of land in dispute, which
constitute the shares of Sixto de Jesus and Natalia Alfonga, in favor of
respondent Manglapus. In approving the project of partition, the court
definitely adjudicated said properties to Sixto de Jesus and Natalia Alfonga,
and by approving the sale thereof to Manglapus on the same day, the court, which
still retained jurisdiction over the case and over the final distribution of the
estate, in effect, amended the partition as submitted to it in the project of
partition, with the consequence that the respondent Justina S. Vda. de Manglapus
stepped into the shoes of Sixto de Jesus and ‘Natalia Alfonga as the person to
whom that portion of the inheritance was adjudicated by the court. The
petitioners are obviously not the owners of the’parcels of land in controversy.
In fact, in claiming the right of redemption under article 1067 of the Civil
Code, they necessarily admit that they are not such owners. Even the existence
of that right of redemption is actually the subject of a pending case, namely,
civil case No. 3960 of the Court of First Instance of Batangas, which has been
appealed to this court and docketed here as G. R. No. L-527.[1] As between the
owner of a piece of property, as an admitted purchaser unquestionably is, and
the claimants of a mere contingent right to acquire the same through legal
redemption, there can be no question as to who has the better right to possess
that property pending the decision of the case concerning such redemption.

Rule 123, section 5, among other things, provides that matters capable of
unquestionable demonstration, or which ought to be known to judges because of
their judicial functions “shall be judicially recognized by the court without
the introduction of proof.” In the Unpublished decision of this court m Dizon
and Co. vs. Pineda (G.. R. No. 34679), the following passage appears:

“* * * And supreme Court has taken judicial notice of its record in a
previous casa in cwmection with the conduct of a litigant or witness on a
similar matter,” (Moran, The Law of Evidence in the Philippines, Revised and
Enlarged”‘Edition, p. 11.)

In G. R. No. L-527, De Jesus vs. Manglapus, which is the same civil case No.
3960 of the Court of First Instance of Batangas mentioned in the petition for
certiorari and mandamus herein, concerning precisely the legal redemption of
which we are here speaking, we find on page 14 of the brief of appellants
therein, who are the petitioners in this case, the statement that the sale to
Manglapus would have been null and void without the court’s approval of the
project of partition. This means that the approval of the project of partition
had to precede the taking effect of the sale. On page 19 of the same
brief, appellants quote from paragraph 2 of their own supplemental complaint
alleging that Sixto de Jesus and Justina S. Vda. de Manglapus supplemented the
promise to sell therein alleged with an “addendum wherein it is provided that,
in case, on the date the absolute sale and payment of said interests,
rights and participation would be finally executed and paid * * *.”
(Italics supplied.) This necessarily implies that at the time of execution of
said addendum the absolute sale was yet to be subsequently executed. Indeed, it
being admitted on all sides that vendors and vendee submitted the deed of sale
to the probate court’s approval, it is veiy plain that they made the sale
subject to a condition precedent, namely, the same judicial approval. In other
words, by the agreement of the parties, the sale was not to take effect until
and unless thus approved (Civil Code, article 1114). And this approval came
after the approval of the project of partition. Hence, besides the reasons
stated in our decision, the foregoing additionally show that we are dealing with
a case in which the sale was made after the partition, which means that article
1067 of the Civil Code is unavailable to petitioners, since said article
expressly refers to a sale before the partition.

Petitioner also challenges the jurisdiction of the court below to issue its
order of January 29, 1946, “because the condition precedent of ‘demand’ required
by’ section 1 of Rule 91 of the Rules of Court was not complied with by the
respondent Mrs. Manglapus.” This is not an action of unlawful detainer under
Rule 72, section 2, where formal demand is made a condition precedent to the
filing of the action. The right conferred by Rule 91, section 1. is to
demand and recover, and this right is conferred alike to an
heir and to any other interested person with regard to the portion of the estate
to which one or the other may be entitled. The provision says:

“* * * and such persons may demand and recover their respective shares from
the executor or administrator, or any other person having the same in his
possession.”

In the first place, Rule 91, section 1, far from expressly requiring demand
(as does, for instance, Rule 72, section 2, in cases of ejectment for failure to
pay rent due or to comply with the condition of the lease), confers a right
which by the terms in which the provision is couched, is exercisable by direct
resort to the court. The provision refers to two cases. Firstly, where the
possession is with the executor or administrator and secondly, where it is with
any other person; but the right given to the party to demand and recover is
exactly the same in the two cases. In fact, the preposition “from”—the only one
used in the provision—refers both and equally to the “executor or administrator”
and to the “other person.” Now, it can not be legitimately contended that the
probate court would not have jurisdiction to order its agent, the executor or
administrator, to deliver the possession to the party, though such party, before
asking for that order, should not first make formal demand upon the executor or
administrator. The jurisdiction and power of the court in such a case to order
the delivery without such previous formal demand is based upon the principle
that in anrestate proceeding, the executor or administrator is constantly and
completely under the jurisdiction and control of the probate court. Likewise, if
the “other person,” as happens in the instant case, should be also within the
constaru and complete control and jurisdiction of the probate court for being
one of the heirs of tho decedent, who has previously appeared and actively
participated in the proceedings, there being an identity of reasons, the
provision should be similarly construed. Consequently, for the claimant to tie
entitled to an order of the probate court for such “other person” or heirs to
surrender the possession of the share pertaining to said claimant, no previous
formal demand upon him is required.

Finally, even supposing arguendo that demand would have been
otherwise necessary in this case, the very position taken by petitioners in
denying the right of respondent Manglapus, under well-settled rules of law, made
the demand unnecessary. Indeed, it would have converted the demand into an idle
performance and a meaningless requirement. For what rational need could there
have been for Manglapus to demand the possession from them when we all know that
they would have refused to surrender that possession anyway? It is a well known
rule that,

even irr ordinary contentious litigations, a demand is not necessaiy where
defendant’s liability is predicated upon a precedent debt or duty, or where
there is a present and unconditional duty to perform some particular act, or, as
sometimes stated, where the bringing of the action itself ia sufficient demand.
(1 C. J., 978, 979.) That “precedent duty,” that “present and unconditional
duty” in this case was to surrender the possession of the property to the party
(respondent Manglapus) to whom the probate court had adjudicated it.

“SECTION 80. 4. Circumstances Obviating Necessity for Demand.— A
demand, although otherwise essential, need not be made where it sufficiently
appears that if made it would be merely useless ceremony and would not be
complied with. Thus no demand is necessaiy where defendant could not comply
therewith, particularly where by his own act he has disabled himself from
complying: or where he has stated in advance that he would notcompiy, or has
repudiated his obligation; or where he denies plaintiff’s right or his own
liability, which may sufficiently appear, so as to obviate the necessity
for any proof of a demand, from the nature of the defense interposed or the
position taken by the defendant upon the trial. * * *” (1 C. J., 980, 981;
italics supplied.)

We are, therefore, clearly of opinion that the motion for reconsideration
should be, as it is hereby, denied. So ordered.

Moran, C. J., Pablo,
Bengzon, Briones, Padilla, and Tuason, JJ., concur.

DISSENTING

PERFECTO, J., with whom concurs PARAS,
J.:

The interpretation given by the majority to section 1 of Rule 91 seems to us
not well-founded.

Said section provides:

“SECTION 1. When order for distribution of residue made. Testimony taken
on controversy preserved.—When the debts, funeral charges, and expenses of
administration, the allowances to the widow, and inheritance tax, if any,
chargeable to the estate in accordance with law, have been paid, the court, on
the application of the executor or administrator, or of a person interested in
the estate, and after hearing upon notice, shall assign the residue of the
estate to the persona entitled to the same, naming them and the proportions, or
parts, to which each ia entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having
the same in his possession. If there is a controversy before the court as to who
are the lawful heirs of the deceased person or as to the distributive share to
which each person is entitled under the law, the testimony as to such
controversy shall be taken in writing by the judge, under oath.

“No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributees, or any of
them, give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court
directs.”

Our disagreement refers to the interpretation that should be given to the
following words in said section: “such persons may demand and recover their
respective shares from the executor or administrator, or any other person having
the same in his possession.”

The majority take the position that the right to “demand and recover,” as
used in the rule, is a final executory as a final and unappealable judgment
could be, to such an extent that if the share demanded happens to be in the
possession of any person, no matter who he might be, no matter what claims he
might have upon the property in his possession, no matter what title he might
produce.for possessing it, a mere order of the probate court would obligate him
to surrender the property to the person designated by said court.

There can not be any controversy if the share happens to be in the possession
of the executor o”r administrator, not only because both are officers of the
probate court and are therefore amenable to its orders, But because they hold
the property in their respective capacity as such officers of the court in the
same way as a clerk of court is keeping the records thereof. But when the
property in question is in the possession of other persons who are not officers
or subordinates of the probate court, the latter can not deprive them of the
possession of the property by a mere judicial ukase, overruling summarily any
adverse claim that they might have on the property or any protest they might
advance. These persons can not be deprived of their possession through a writ of
execution issued by the probate court, without giving them their day in
court.

We vote to grant the motion for reconsideration.