FAUSTO COTIA, PETITIONER, VS. HON. POTENCIANO PECSON, JUDGE OF COURT OF FIRST INSTANCE OF MANILA AND ELENA COTIA, RESPONDENTS.

This
is an appeal application for mandamus to compel “the respondent judge
to forthwith order Elena Cotia to turn over to the petitioner herein
the administration of the estate of the deceased Mariano Cotia.” The
specific question presented is whether an order removing a regular
administrator and appointing a new one is executory during the pendency
of an appeal from the order.

We know of no statutory
provision or rule of court, and none has been cited, governing the
question other than section 2 of Rule 39, which is of general
application.

By this rule, the court is authorized to issue
execution before a judgment or order becomes final, but this is so only
“before the expiration of the time to appeal” and “upon good reasons to
be stated in a special order.”

Neither of these conditions,
both of which must combine, was present in the instant case. Not only
no special reasons were alleged but the adverse party had perfected and
elevated her appeal to the appellate court.

It is
conceivable that a judicial executor’s or administrator’s removal may
be enforced at once pending the appeal when such action is deemed
necessary to protect an estate from mismanagement. But the sole ground
for Elena Cotia’s discharge has nothing to do with her fitness to
perform the duties of her trust. The objection which had given rise to
her removal and the appointment of the herein petitioner was purely
technical in nature and highly controversial. It was simply a matter of
which of two alleged marriages of the deceased was legal or whether
both were.

For facts, it appears that in the matter of the
intestate estate of Mariano Cotia, deceased, special proceedings No.
10916 of the Court of First Instance of Manila, Elena Cotia was, on
July 16, 1950, appointed administratix as daughter of the decedent by
Aw Sek, his alleged lawful wife. In due time, Elena Cotia duly
qualified and entered upon the discharge of the duties of the office.

On July 26, Maria Jimenez Vda. de Cotia, claiming to be Mariano Cotia’s
first and only legitimate spouse, and Fausto Cotia, Maria Jimenez’s son
by the said deceased, demanded the right to choose or be appointed
administrator in preference to Elena Cotia, and asked for the
revocation of the latter’s appointment.

Trial having been
held, His Honor, Judge Pecson, found Maria Jimenez’s contention well
supported by the evidence, and that Mariano Cotia’s purported marriage
in China to Aw Sek had not been shown to be valid under the laws of
that country. Maria Jimenez or her nominee was accordingly declared
entitled by law to administer the decedent’s estate, and Elena Cotia
was ordered removed. It was then that an urgent motion was filed by
Fausto Cotia’s counsel, to order Elena Cotia “to turn over all
properties, real and personal, cash or otherwise, to Fausto Cotia,”
motion which was denied on the ground that the order having been
appealed had not become final.

In fine, the only reason for
petitioner’s impatience was the fact that, having been appointed
administrator, he had already taken the required oath and put up the
required bond. This reason was utterly insufficient to take the case
out of the general rule before mentioned, and the respondent judge did
not make any mistake in denying premature execution of his order.

The application is denied, with costs against the petitioner.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.