ROSARIO OÑAS, PETITIONER AND APPELLEE, VS. CONSOLACION JAVILLO ET AL., OPPOSITORS AND APPELLANTS.

Crispulo Javillo died in May, 1927, leaving a widow, Rosario Onas,
and nine children, named Consolacion, Mercedes, Caridad, Soledad, Jose,
Joaquin, Ana, Bernarda, and Furillana Javillo. The first five were had
with his first wife; the other children are minors and were born in the
second marriage.

Probate proceedings of the estate of the deceased were instituted
on July 25, 1927, and in September of the same year one Santiago
Andrada was appointed administrator of the estate, and a committee of
claims and appraisals was also duly appointed.

On May 24, 1928, the administrator presented a project for the
distribution of the estate. The children of the first marriage as well
as the widow of the deceased, expressed their conformity with the
proposed distribution, and on May 26, 1928, Judge Opisso, then
presiding in the Court of First Instance of Capiz, approved the project
presented. Two months later, the widow, Rosario Onas, filed a motion in
which she alleged that she had been deceived and misled into giving her
conformity to the project of distribution mentioned, and that if such
distribution was carried out, she as well as the minor children, would
be defrauded of their rights inasmuch as the portions adjudged to them
were much smaller than the portions adjudicated to the children of the
first marriage. She therefore prayed that the order of May 26, 1928,
approving the proposed distribution, be set aside and that said
distribution be declared null and void; that a new guardian ad litem be
appointed to protect the interests of the minor children and that a new
distribution be made in conformity with the law of succession. The
motion was set down for hearing on August 1, 1928, and on the following
day, Judge Garduno, then presiding, revoked the order in question
without receiving evidence from the son and daughters of the first
marriage of the deceased. They therefore filed a motion for
reconsideration of said order, and Judge Garduno thereupon commissioned
the clerk of the court to take the evidence offered by the protesting
parties, and on February 2, 1929, he confirmed the order of August 2d,
and ordered the administrator to present a new inventory and to include
therein certain other items not mentioned in the original inventory.
The court further ordered that a new project of partition be prepared
according to law. As a result, the children of the deceased,
represented by Attorney Santiago Abella Vito, appealed to this court.

The principal contention of the appellants is that the court below
had no authority to set aside the order of August 2, 1928. In our
opinion, this contention cannot be sustained. In probate proceedings
considerable latitude is allowed a Court of First Instance in modifying
or revoking its own orders as long as the proceedings are pending in
the same court and timely applications or motions for such
modifications or revocations are made by the interested parties. In the
present case no final settlement of the estate of the deceased appears
to have been made, and the case is consequently still within the
jurisdiction of the court. The order of August 2d was issued on the
petition of the appellee only two months after the approval of the
project of distribution presented by the administrator, and we cannot
hold that said petition was not timely presented and that the court
erred in revoking its own order. Moreover, the petition for the
revocation was, in effect, an application for relief tinder section 113
of the Code of Civil Procedure, and this court has held that the
provisions of said section may be applied to probate proceedings (In re
Estate of Johnson, 39 Phil., 156). From this point of view, it is
unnecessary to herein discuss the other points raised by the
appellants, and it is evident that the appeal taken is premature.

Said appeal is therefore dismissed without prejudice to the
appellants’ right to appeal when the new distribution of the estate has
been approved and adjudged by the court below. The appellants will pay
the costs of this instance. So ordered.

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