TESTATE ESTATE OF ALEXANDER I. BACHRACH BY ITS EXECUTRIX ANNE B. BACHRACH, PETITIONER, VS. RAFAEL AMPARO AND INTESTATE ESTATE OF VALENTIN DESCALS BY ITS ADMINISTRATOR IGNACIO PL…

This is a petition to annul the order of the respondent judge of December 23,
1949, ordering the herein petitioner as executrix of the deceased Alexander I.
Bachrach to pay, within ten days, the claim of Valentin Descals arising out of a
promissory note Exh. A, executed on January 23, 1945 by said Alexander I.
Bachrach in words as follows:

“Pagare a Don Valentin Descals o a su orden a su requerimiento no antes de
ciento veinte (120) dias despues de firmada la paz entre el Japon y los Estados
Unidos de America la cantidad de Pesos Siete mil quinientos (P7,500) moneda
filipina corriente, valor recibido del misrao a mi entera satisfaccion.

“Manila, 23 Enero 1945.

“Testigo:
“(Fdo.) CARLOS OTEYZA	(Fdo.) A. BACHRACH.”

The petition is based upon the moratorium law.

It appears that subsequent to the execution of the above note Alexander I.
Bachrach died; that in the proceedings to settle his estate in the Manila court
of first instance Anne B. Bachrach, the herein petitioner, was named executrix;
that Valentin Descals filed therein his claim represented by the note; that at
the hearing of February 28, 1946 “the executrix through her counsel” recommended
“favorably the payment of the promissory note Exhibit A”, and pursuant to such
representations, the Honorable Buenaventura Ocampo, Judge, on July 1, 1946,
ordered the payment of the sum of P7,500.00 to Valentin Descals in due course of
administration; that subsequently Valentin Descals died; that on January 11,
1949 his administrator, the respondent Ignacio Planas, asked the court that the
executrix be ordered to pay the above-mentioned promissory note; that the
executrix objected alleging two defenses, namely, (1) that the obligation of the
deceased Bachrach was payable only after the signing of the treaty of peace with
Japan, which so far has not been signed and (2) the moratorium orders and laws;
that on February 1, 1949 the respondent judge, acting in Manila, overruled the
objection and ordered the payment of the promissory note inasmuch as the order
of July 1, 1946, had become final and executory more than two years before; that
this last order likewise acquired finality through the failure of petitioner to
appeal in due time, the order disapproving her record on appeal having been
entered on December 13, 1949; that on December 16, 1949, petitioner filed a
motion to suspend the payment of the note and the enforcement of the order of
February 1, 1949, invoking the moratorium orders; that the respondent judge
denied the petition and reiterated the order of payment giving the executrix ten
days within which to comply. Hence this petition.

This Court is unanimous in the opinion that inasmuch as the executrix
recommended payment of the note and the order of payment based on such
recommendation has become final and outstanding for several years, the
moratorium may not now be invoked, her action being a waiver thereof, which may
not be withdrawn at will.

And although relief might possibly be extended under Rule 38 if it is proved
that her waiver was made through mistake etc., her failure to appeal the orders
denying her petition based on such grounds precludes the grant of any remedy
along that line at this stage of the proceedings.

The order of the respondent judge will stand. The petition is denied, with
costs.

Moran, C. J., Ozaeta, Pablo, Padilla, Tuason, Montemayor, Reyes, and
Torres, JJ., concur.

Paras, J., took no part.