PETRONA QUIMPO, AS ADMINISTRATRIX OF THE DECEASED, JUAN MORALES, PETITIONER, VS. FERNANDO SALAS, JUDGE OF THE COURT OF FIRST INSTANCE OF CAPIZ, MARCELA SALAZAR AND MARIA RODRIGU…

This is an original petition for a writ of
prohibition, to be directed to the Hon. Fernando Salas, Judge of the
Court of First Instance of Capiz, requiring him to desist from
entertaining, approving, or recognizing a claim which has been approved
by the committee appointed to appraise the estate and allow claims in
the intestacy of Juan Morales, deceased. The matter is now before us
upon demurrer interposed in behalf of the respondents.

It appears that the petitioner, Petrona Quimpo, was appointed as
administratrix of the estate of Juan Morales on July 14, 1917, and in
due time qualified as such. On November 22,1917, the court appointed a
committee, consisting of Felipe Fernandez and Cirilo Laserna, to
appraise the property and allow claims against the estate of the
deceased. On December 28, 1917, however, the appointment of Felipe
Fernandez was revoked, and Nicanor Gonzales was appointed in his stead.
The commissioners duly qualified for the exercise of their office,
Nicanor Gonzales on March 16, 1918, and Cirilo Laserna on July 10, of
the same year.

Section 687 of the Code of Civil Procedure directs that, “within
sixty days from the time of their appointment,” the committee shall, in
the manner prescribed in that section, give notice of the times and
places of their meeting and of the time limited for creditors to
present their claims. Instead of observing this precept of the statute
with reference to the time of giving of notice, the commissioners
allowed a period of more than four months to elapse from the date when
the last commissioner qualified before the notice was given; and it is
alleged that publication of said notice was finally made in the weekly
newspaper, called El Adalid, in the issues of December 16, .23, and 29, 1918.

On April 13, 1919, the respondents, Marcela Salazar and Maria E.
Rodriguez, as creditors, presented to the committee certain claims
against the estate of Juan Morales for the sum of P349, which claims
were allowed by the committee. Later the creditors moved the Court of
First Instance to approve the report of the commissioners, which motion
was resisted by the petitioner as administratrix on the ground that the
commissioners were without jurisdiction to entertain said claims. The
court, nevertheless, on June 26, 1920, declared the committee to have
been properly constituted, and admitted the appeal which the petitioner
had interposed to the action of the committee. By this means, as will
be seen, the contention was brought before His Honor, Judge Fernando
Salas, who, it would appear, is prepared to proceed with the matter in
the usual course.

It is alleged in the petition that the Judge of the Court of First
Instance, pursuant to section 689, of the Code of Civil Procedure,
allowed a period of only six months to the commissioners to receive and
pass upon claims presented against the estate of the deceased; and one
of the grounds upon which the writ of prohibition is now sought is that
more than six months had passed before the claims in question were
presented to the committee.

We are of the opinion that the petition is without merit. The
demurrer will, therefore, be sustained, and the petition will be
dismissed.

In the first place, even supposing that the authority of the
commissioners had expired by the effluxion of time and that the
committee had become incompetent to act, the question was one that
could properly be ventilated upon appeal before the Judge of First
Instance; and this was more proper because the Judge of First Instance,
upon discovering any irregularity of the kind denounced by the
petitioner, would have had the power, if necessary, to renew the
commission. The petitioner, therefore, had a speedy and adequate remedy
by appeal; and recourse to the writ of prohibition from this court
would in our opinion constitute more of an obstacle to the effectuation
of justice than a means of realizing it.

In the second place, we are of the opinion that the commissioners
had jurisdiction to entertain and allow the claims in question
notwithstanding their failure to give the notice presented in section
687 of the Code of Civil Procedure within the period of sixty days. It
can not be admitted that the valid claims of creditors against the
estate of a deceased person can be destroyed by undue delay on the part
of the commissioners in giving the required notice. The creditors have
no control over the actions of the commissioners and hence they should
not be prejudiced by their delay. The requirement that the notice shall
be given within sixty days is intended to expedite the course of the
administration; and as has been repeatedly said by the American courts,
this provision is intended as a protection to the administrator. At any
rate, it is not a weapon by which the rightful claims of creditors can
be cut down.

In Johnson vs. Barker (57 Iowa, 32), it was claimed the
failure of an executor to give notice of his appointment, as provided
by statute, had the effect of annulling the appointment. But the
Supreme Court of Iowa said: “The statute is directory and the omission
to give the notice does not have the effect to annul the appointment or
prevent the incumbent from discharging the duties pertaining thereto.”

In Field vs. Field (77 New York, 294), the Supreme Court, speaking upon a similar point, observed:

“Claims may be presented at any time after the
executors qualify and enter upon the discharge of their duties, and
while they are entitled to a reasonable time to examine and decide upon
the justice of claims presented, when they do decide, even though no
notice has been published, the effect of their decision is the same as
though the claim was presented after publication. The notice is for the
protection of executors, and the estates which they represent, and
there is no absolute legal obligation to give it at all.”

It results that the delay of the committee in giving notice has the
effect of extending by just so much time the period within which claims
can be presented; and it must of course be understood that the time
fixed by the court under section 689 of the Code of Civil Procedure for
creditors to present their claims must be counted from the beginning of
the time within which, according to the notice, claims may be
presented. In this case the claims in controversy were presented less
than six months after the publication of notice was completed and
therefore within the period fixed by the court.

In order not to be misunderstood, we will add, that the question
whether the bar created by section 695 could be invoked against a
creditor when the notice required by section 687 has not been given, is
a totally different one from that now before us. The point now under
consideration is whether the committee loses jurisdiction to entertain
a claim by undue delay on its part in giving the notice required by
section 687. We hold that it does not lose such jurisdiction, and that
the creditor is not prejudiced by such delay, where he in fact presents
his claim within the period fixed for the presentation of claims after
notice given. In such case a renewal of the commission under section
690 of the Code of Civil Procedure is unnecessary.

The petition will be dismissed, with costs against the petitioner. So ordered.

Mapa, C. J., Araullo, Malcolm, and Avaneena, JJ., concur.