INTESTACY OF ANGEL GUSTILO, DECEASED. AGRIPINO S. GUSTILO, ADMINISTRATOR AND APPELLEE, VS. PERPETUA SIAN, CREDITOR AND APPELLANT.

This is an appeal from an order of the Court of First Instance of
Iloilo, in the intestacy of Angel Gustilo, deceased, whereby Judge
Santamaria denied relief to the appellant, Perpetua Sian, from a
previous order made in the intestacy on April 7, 1928, by Judge
Fernando Salas.

It appears that on July 7, 1923, Agripino S. Gustilo was appointed
administrator of the estate of his deceased father, Angel Gustilo; and
on July 30,1925, the administrator filed his accounts for the years
1923 to 1925, inclusive. On October 15, 1926, the widow of the
intestate, in conjunction with other heirs, presented a motion asking
for the removal of the administrator, charging him with being
negligent,, inefficient and self-serving, and with having falsely made
to appear in his accounts exorbitant and illegal expenses, ruinous to
the estate under administration. On July 16, 1927, the administrator
presented a motion asking that he be granted a salary of P3,000
annually. On the same day the administrator presented separate accounts
for the years 1925-1926 and 1926-1927. In the first of these accounts
there appeared a deficit of P462.25; while in the second there appeared
a deficit of P3,222.91. To these accounts opposition was made by
Leocadia Majito, one of the creditors, the opposition being especially
directed to the annual salary of P3,000 which the administrator
credited to himself and the sum of Pl,000 paid by him to his attorney.
This opposition on the part of Leocadia Majito was reiterated nine days
later in a writing in which exception was taken to the distribution of
surplus in the amount of P11,304.50. Still later, on August 5, 1927,
Leocadia Majito, in a more detailed writing of opposition, pointed out
that certain alleged debts had been charged twice to the estate and
that no adequate vouchers were exhibited to justify the charges.

On August 23, 1927, Judge Santamaria, before whom, as Judge of the
First Branch of the Court of Iloilo, the intestacy had hitherto been
heard, disapproved the accounts of the administrator and ordered him to
file amended accounts within thirty days. On September 30, 1927, the
administrator asked for an extension of time within which to file the
required amended accounts. This motion was granted, but no amended
accounts were ever filed. On February 28, 1928, the administrator
presented for a second time the old accounts without change. On March
26, 1928, Judge Fernando Salas (in the absence of Judge Santamaria)
ordered the administrator to present amended accounts within ten days;
but, in disregard of this order, Judge Salas, on April 7, 1928,
reconsidered the order of Judge Santamaria of August 23, 1927, and at
the same time approved the same two accounts. Of this order the
opposing creditors do not appear to have received due notice. On June
26, 1928, the attorney for the appellant filed a motion asking for the
reconsideration of the order of April 7, 1928, alleging fraud, mistake
and surprise. In the same motion application was made for the removal
of the administrator and for the forfeiture of his bond. This
application we consider to have been made under section 113 of the Code
of Civil Procedure; and it is from an order of Judge Santamaria,
expressed with some regret, denying the application to set aside the
order of Judge Salas of April 7, 1928, that this appeal is being
prosecuted.

There can be no doubt that an appeal lies from a refusal of a court
to grant relief in a proper case under section 113 of the Code of Civil
Procedure; and it is evident that Judge Santamaria, possibly out of an
excessive deference for the prior order of an associate, has failed to
give relief where relief was in fact called for. The order of Judge
Salas, which is the subject of complaint in this appeal, was in our
opinion improvident, to say the least, and made without a reasonable
opportunity having been given to the adverse creditors to make
effective opposition.

From what has been said it follows that the order from which this
appeal was taken is erroneous, and, as prayed in the first assignment
of error, we hereby set aside the order of Judge Fernando Salas of
April 7, 1928, with the result that the proceedings will be restored to
the position in which they stood before that order was entered, except
as stated in the next paragraph.

A careful examination of the facts revealed in this record
concerning the activities of Agripino S. Gustilo, as administrator of
Angel Gustilo, convinces this court that he is not a fit person to be
administrator of this estate and that he has not in fact administered
it so far with due regard to the rights of other persons in interest.
It is the opinion of the court, therefore, that he should be removed
and required to render his accounts as administrator, in accordance
with the second assignment of error.

The third assignment of error, taking exception to the refusal of
the trial court to order the forfeiture of the bond of the
administrator, in our opinion contemplates an order that would be
premature.

The fourth assignment of error involves a criticism of the court a quo for not seeing that the debts of the estate had been more expeditiously paid; and it supplies no basis for resolution here.

In conclusion, the order of April 7, 1928, above referred to, is
abrogated, the administrator, Agripino S. Gustilo, is removed from
office, with liability to account, and the cause remanded for further
proceedings. So ordered, without costs,

Johnson, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.