IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED MAXIMA SANTOS VDA. DE BLAS, PONCIANO B. FLORES, PETITIONER-APPELLANT, VS. ROSALINA SANTOS, IN HER CAPACITY AS EXECUTRIX, ARSE…

The denial, in an
order of August 31, 1964, by Judge Cecilia Muñoz
Palma of the Court of First Instance of
Rizal, of a petition to set aside a previous order of
June 15, 1964 approving a second partial project of partition filed by the
executrix and the residuary heirs of the deceased, Maxima Santos Vda. de Blas, and adjudicating to the respective parties
therein mentioned the properties both real and persons as therein proposed, insofar as the share of one of the heirs Marvin S. Buendia,
was awarded to Arsenio S. Pascual,
petitioner claiming that he had
previously acquired the same in a sale by public auction, by virtue of a
writ of execution issued by the Court
of First Instance of Pampanga, is challenged in this
appeal.  For reasons to be expressed more
fully the above order of August 31, 1964, denying the petition “without
prejudice to any other action which [petitioner] may take on the matter as
against Marvin S. Buendia,” which, as noted, was
not properly to be ventilated in the testate pro­ceeding, is sustained.

In the
brief of petitioner Ponciano B. Flores, as appellant,
the antecedents of his petition were narrated thus:  “On June 11, 1964, the executrix (one of the appellees herein) and the residuary heirs of the aforesaid
deceased presented the court below a second partial project of partition
* * *.  In said project of partition, the
hereditary rights of the heir Marvin Buendia (also an
appellee herein), including his 2/80 share in the
property covered by Transfer Certificate of Title No. 42372 of Rizal, were adjudicated in favor of Arsenio
S. Pascual (an appellee
herein) to wham the said hereditary had allegedly been sold and assigned by
Marvin Buendia. 
The lower court approved the second partial project of partition in its
order dated June 15, 1964 *
* *.”^[1]
Then came a statement of his claim: 
“On July 3, 1964, appellant filed a verified petition * * * to set
aside the said order of June 15, 1964, alleging other things that he is the
purchaser of the 2/80 share of Marvin Buendia in the
property covered by Transfer Certificate of Title No. 42372 in a sate at public
auction made by the Provincial Sheriff of Rizal on
February 12, 1964 in pursuance of the writ of execution issued by the Court of
First Instance of Pampanga in Civil Case No. 2222
entitled ‘Ponciano B. Flores vs. Marvin Buendia’: that he was not notified of the hearing of the
second partial project of partition although the executrix had been duly
informed of the aforesaid auction sale: and that the adjudication of the said
2/80 share of Marvin Buendia in favor of Arsenio S. Pascual is contrary to
the provisions of Section 9, Rule 57, of the new Rules of Court.”^[2]
He would pray, therefore, “that the order of June 15, 1964, he set aside
insofar as it adjudicates to Arsenio S. Pascual the said 2/80 share in the property in question and
that the same be delivered instead to the Provincial Sheriff of Rizal, subject to the right of redemption by the judgment
debtor or by any redemptioner within the period
provided by law.”^[3]

The opposition of the executrix was set forth in the brief of
petitioner as appellant thus: 
“Under date of July 16, 1964, the executrix filed an opposition * *
* claiming validity of the adjudication of the 2/80 share of Marvin Buendia in the property in favor of Arsenio
S. Pascual because all tile rights, interests and
participation of said heir in the estate of the deceased had already been sold
and assigned to said Arsenio S. Pascual
way back on December 15, 1962: that appellant Ponciano
B. Flores acquired nothing by virtue of the alleged sale at public auction
inasmuch as Marvin Buendia had no more right or
interest in the said property when the Sheriff of Rizal
attached and sold at public auction the said property; and that the said
adjudication is proper, legal and justified especially so when the same was
made principally upon agreement of the residuary heir Marvin Buendia and Arsenio S. Pascual.”^[4]
After which came a reply from petitioner “stating that he is a purchaser
in good faith and for value of the 2/80 share of Marvin Buendia
in the property in question because at the time of the sale he had no knowledge
or information concerning the assignment thereof in favor of Arsenio S. Parcual; that no
third-party claim was filed with the sheriff by either Arsenio
S. Pascual or the executrix; that before taking part
in the auction sale, he investigated the status of Transfer of Certificate of
Title No. 42372 and found the same to be free from any liens and encumbrances;
and that he is not bound and cannot be prejudiced by a support prior assignment
made to Arsenio S. Pascual
of the rights and interests of Marvin Buendia in the
property inasmuch as the sale of tie same property in his favor has been duly
register and annotated at the back of the title thereof.”^[5]

As noted, the lower court
denied, on August 31, 1964, the petition to set aside its order of June 15,
1964.  Hence this appeal, in view of the controlling legal principle cannot, as already indicated, succeed.

Petitioner would assail
the adjudication of the rights mid interests
of the heir, Marvin S. Buendia, in the aforesaid 2/80
undivided portion of the property embraced in TCT No. 42372 in favor of appellee Arsenio S. Pascual as being contrary to a specific provision of the
Rules of Court: “The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a decedent, shall not impair
the powers of the executor, administrator, or other personal representative, of
the decedent over such property for the purpose of administration.  Such personal representative, however, shall
report the attachment to the court when petition for distribution it filed, and
in the order made upon such petition, distribution may be awarded to such heir,
legatee, or devisee, but the property attached shall be ordered delivered to the officer making the levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him.”^[6]

Petitioner apparently
lost sight of or even more specify prevision found in an earlier section of the
same Rule.  Thus: “Properties shall
he attached by the officer executing the order in the following
manner:  * * * The interest of the party
against whom attachment is issued in property belonging to the estate of the
decedent, whether as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent with a copy of
the order and notice that said interest is attached.  A copy of said order of attachment and of
said notice shall also be file in the office of the clerk of court in which
said estate is being settled and served upon the heir, legatee or devisee
concerned.” The second paragraph is particularly pertinent.  “If the property sought to be attached
is in custodia legis,
copy of the order of attachment shall be filed with the proper court and notice
of the attachment served upon the custodian of such property.”^[7]
As authoritatively commented upon by former Chief Justice Moran: “Taken
from sub-section (f) of section 7 of former Rule 59, which was based on rulings
laid down by the Supreme Court and was in conformity
with American Jurisprudence.  A further
proviso has been added to the effect that if the property sought to be attached
is in custodia legis, a
copy of the writ shall be filed with the proper court and notice of the
attachment served upon the custodian of such property.”^[8]

Petitioner in this case, having failed to comply with the above
requirement of the Rules of Court, cannot be heard to complain if such an order
of adjudication in favor of appellee.  Arsenio S. Pascual were made.  The validity of such order by Judge Muñoz Palma cannot be successfully impugned.  No reliance can be had on the writ of
execution issued by another court of first instance to affect a property
forming part of an estate still in custodia legis the procedure required by law not having been
followed.  It cannot escape attention
that in the challenged order the rights of petitioner as against the heir were
safeguarded, but certainly, under the circumstances, what was done by it as a
probate court cannot by this petition be undone.

The brief for petitioner as appellant assigned as the first two
errors the failure of the lower court to consider him a purchaser for value of
the rights and interests of Marvin S. Buendia in the
property now the object of this proceeding and that au such his having “a
better right * * *as against appellee Arsenio S. Pascual, who is a
prior assignee thereof [but] whose assignment is not recorded in the title of
the property.” The last two alleged errors would find fault in the
adjudication of the aforesaid share of Marvin S. Buendia
in favor of appellee Arsenio
S. Pascual instead of awarding it to such heir, but
ordering its delivery to the Sheriff subject to the claim of petitioner.  There is no need to discuss any of the above
errors in view of what has been set forth, which renders clear and indisputable
that, in accordance with the facts before the lower court and the procedural
rules that call for application, the order assailed cannot be shown to be
illegal.

WHEREFORE, the order of Judge Muñoz
Palma on August 31, 1964,
denying the petition of June 15, 1964,
is affirmed.  With
costs against petitioner-appellant.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, and Angeles, JJ.,
concur.

^[1]
Brief for the Appellant, p.  3.

^[2]
Ibid, pp. 
3 4.

^[3]
Ibid, p. 
4.

^[4]
Ibid, pp. 
4-5.

^[5]
Ibid, p.  5.

^[6]
Rule 57, Sec.  9, New Rules of Court.

^[7]
Rule 57, Sec.  7(f), New Rules of Court.

^[8]
3 Moran, Comments on the Rules of Court, 1963 ed.  pp.  31-32.