SOTERO P. FERMIN ET AL., PLAINTIFFS AND APPELLEES, VS. LEON PASE CARLOS ET AL., DEFENDANTS. LEON PASE CARLOS, APPELLANT.

This is an action for the recovery of P12,468 with legal interest
thereon from the filing of the complaint, which amount the plaintiffs
alleged having paid to the defendants, Leon Pase Carlos and Praxedes
Soriano, as price in advance of 2,078 cavans of palay.

The defendants filed a general denial with a counterclaim and the case
was tried by the Honorable Anacleto Diaz, judge, who, on January 24,
1922, rendered judgment sentencing the defendants to return to the
plaintiffs the sum claimed of P12,468, with legal interest thereon from
the filing of the complaint.

Said judgment was appealed to this court, the appeal having been docketed as No. 19991;^[1]
but upon motion of the appellants, the record was ordered remanded to
the court below with instruction to hold a new trial, due to the fact
that the transcript of the stenographic notes taken during the first
hearing was not forwarded to this court on account of the official
stenographer who took said notes having died.

When this case
was called for hearing in September, 1924, the defendant Leon Pase
Carlos filed a motion praying for the dismissal of the case on the
ground that the other defendant, Praxedes Soriano, had died in Jaen on
the 16th day of June, 1924, and that as she had not left a will nor
appointed an administrator of her estate, said estate must be held
under administration and a committee appointed to which the claim which
is the subject-matter of the complaint might be presented.

By an order of September 3, 1924, the lower court overruled the motion
of the defendant Leon Pase Carlos and authorized the plaintiffs to
amend the complaint, directing their action against Leon Pase Carlos,
as administrator of the conjugal partnership between him and his
deceased wife.

The complaint having been amended as
indicated in the aforesaid order of August 3, 1924, the defendant filed
an amended answer, denying the allegations contained in the complaint,
and maintaining as special defense that the facts alleged in the
complaint did not constitute sufficient cause of action against the
defendant; that the trial to be held by virtue of said amended
complaint would not constitute due process of law to compel the estate
of the deceased Praxedes Soriano to pay the amount claimed without
hearing her children and other persons interested in said estate; that
the trial court had no jurisdiction to entertain this action and render
judgment on the subject-matter of the amended complaint.

After the introduction of evidence, the trial court rendered judgment
sentencing the defendant Leon Pase Carlos, in his capacity as
administrator of the conjugal partnership between him and his deceased
wife, Praxedes Soriano, to pay or return to the plaintiffs, Sotero P.
Fermin and Margarita E. Fermin, the sum of P12,468 with legal interest
thereon from the date of the filing of the complaint (November 10,
1920) until full payment. From this judgment the defendant appealed.

The appellant alleges that the trial court erred in not dismissing this case under Act No. 3176.

This Act, which was enacted by the Legislature on November 24, 1924,
provides, in its section 1, amending section 685 of Act No. 190, that:

“Sec.
685. When the marriage is dissolved by the death of the husband or
wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof shall be paid, in the testamentary or
intestate proceedings of the deceased spouse, in accordance with the
provisions of this Code relative to the administration and liquidation
of the estates of deceased persons, or in an ordinary liquidation and
partition proceeding, unless the parties, being all of age and legally
capacitated, avail themselves of the right granted to them by this Code
of proceeding to an extrajudicial partition and liquidation of said
property.”

We find that the trial court did
right in not applying this Act to the instant case, taking into account
that its enactment was subsequent, not only to the birth of the cause
of action, but also to the filing of the amended complaint and the
death of the wife of the defendant. Said Act having no retroactive
effect, its provisions cannot be applied to the instant case which must
be disposed of in accordance with articles 1418 and 1421 of the Civil
Code as was held by this court in the case of Nable Jose vs. Nable Jose (41 Phil., 713), and in Manuel and Laxamana vs. Losano (41 Phil., 855).

In the first of said cases this court said: “It has been definitely settled in this jurisdiction (Alfonso vs. Natividad, 6 Phil., 240; Enriquez vs. Victoria, 10 Phil., 10; In the matter of the estate of Amancio, 13 Phil., 297; and Rojas vs.
Singson Tongson, 17 Phil., 476) that when a conjugal partnership is
dissolved by the death of the wife, the surviving husband, and not the
judicial administrator appointed in the proceedings for the settlement
of the wife’s estate, is entitled to the possession of the property of
the conjugal partnership until he has liquidated its affairs; that the
surviving husband is the administrator of the affairs of the conjugal
partnership until they are finally settled and liquidated; and that the
liquidation of the affairs of the partnership is to be conducted by
him, as administrator in accordance with the provisions of articles
1418 to 1426 of the Civil Code.”

It was likewise held in the case of Nable Jose vs. Nable Jose, supra,
that “the duty to pay the debts and Obligations of the partnership
imposed on the surviving husband in article 1423 of the Code carries
with it by necessary implication the right to realize the funds
necessary to that end from the property charged with the debts; and the
husband, as liquidator, is empowered in the exercise of his
uncontrolled discretion to provide for the payment of the debts from
the partnership property in such manner as he may see fit.”

And it was also said that “since the surviving husband is personally
liable for the debts, he may pay all or any part of them from his
personal funds, and reimburse himself from the partnership property.”

In Manuel and Laxamana vs. Losano, supra, the doctrine laid down in Nable Jose vs. Nable Jose, supra,
about the powers and duties of the surviving husband with regard to the
payment of the debts of the conjugal partnership was confirmed and
there this court held: “The interest of the wife, and in case of her
death, of the heirs, prior to the liquidation of the community property
of herself and her husband, is an interest inchoate, a mere expectancy,
which constitutes neither a legal nor an equitable estate, and does not
ripen into title until it appears that there are assets in the
community as a result of the liquidation and settlement. The interest
of the heirs like that of the wife herself is limited to the net
remainder (remanente liquido) resulting from the liquidation
of the affairs of the partnership after dissolution of the partnership;
and until a liquidation has been had, it is impossible to say whether
or not there will be a net remainder to be divided between the
interested parties. Until the existence of a net remainder has been
determined as a result of the liquidation, they can assert no claim of
right or title in or to the community property, which is placed in the
exclusive possession and control of the husband as administrator.”

From the doctrine above set forth, it may be seen that, as this is a
case for the recovery of a debt of the conjugal partnership, sections
689 and 700 of the Code of Civil Procedure invoked by the appellant
have no application.

The allegation of the appellant that
the trial court had no jurisdiction to decide this case on account of
the fact that the children of the deceased Praxedes Soriano were not
included as party defendant, has no merit. As was held in the above
cited two cases of Nable Jose vs. Nable Jose, and Manuel and Laxamana vs. Losano, supra,
the right of the heirs of the deceased spouse, as regards the estate of
the conjugal partnership, is a mere expectancy which does not
constitute either a legal or equitable property and so long as it is
not determined whether there exists a net remainder resulting from the
liquidation, the heirs cannot claim any right or share in said
property, which remains under the exclusive possession and management
of the husband as administrator. And it being, on the other hand, the
duty of the surviving husband to pay the debts of the conjugal
partnership, it is clear that the heirs of the deceased Praxedes
Soriano are not a necessary party, nor do they have any right to
intervene in this action, wherein it is sought to recover a debt of the
said conjugal partnership.

As to the counterclaim of the
defendants mentioned in the brief of the appellant, it must be noted
that while in the answer of the defendants dated December 21, 1920, it
was alleged as a counterclaim that they had delivered 721 cavans and 36
kilos of palay to the plaintiffs; yet in the amended answer
there appears no such allegation. At any rate, the trial judge, after
carefully considering the evidence presented by the parties, arrived at
the conclusion that the said 721 cavans and 36 kilos of palay
had already been included in a liquidation had between the parties, and
that the preponderance of the evidence shows that the defendant and his
deceased wife, Praxedes Soriano, had in fact received from the
plaintiff the sum claimed in the complaint, as the price in advance of
2,078 cavans of palay which the defendants had agreed to
deliver to the plaintiffs, but have not done so until now. We do not
have the opportunity to examine all the evidence introduced at the
trial, because the several exhibits mentioned by the trial judge, who
decided this case, were not attached to the record; but accepting the
facts as set forth in the judgment appealed from, we are of the opinion
that they support the findings made by the trial judge.

Wherefore, the judgment appealed from must be, as is hereby, affirmed, with the costs against the appellant. So ordered.

Avanceña, C. J., Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.

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^[1] Fermin and Fermin vs. Pase Carlos and Soriano; promulgated by resolution, January 23, 1923, not reported.