DOROTEA MENDOZA VIUDA DE BONNEVIE ET AL., PLAINTIFFS AND APPELLANTS, VS. ANTONIA CECILIO VIUDA DE PARDO ET AL., DEFENDANTS AND APPELLEES.

The plaintiffs herein, as heirs of the
deceased Pedro Bonnevie y Orsetty, brought an action in the Court of
First Instance of Manila for the recovery from the defendants of the
sum of P18,000 with legal interest thereon, and the costs. In the
complaint, said plaintiffs alleged that their deceased father was the
creditor of Manuel Pardo y Ferrer, also deceased, in the sum in
question, representing the former’s share in the profits of the firm
“Pardo y Cia.” of which the said two deceased were copartners; that
Manuel Pardo y Ferrer acknowledged said obligation but his sudden death
prevented him from executing the document which he intended to sign;
that later his heirs, the herein defendants, one of whom is the now
deceased Manuel Pardo y Cecilio, acknowledged the aforesaid debt in a
public instrument dated July 25, 1927, and voluntarily assumed the
obligation to pay the same; that the condition imposed therein had been
complied with and the obligation had likewise become due and
demandable, and that notwithstanding such fact, the defendants refused
to pay it in full. Lastly, it was alleged that all the defendants were
of age.

After the filing of the complaint, the defendant Manuel Pardo y
Cecilio died giving rise to the amendment of the complaint and the
service of summons upon his executor, who appeared in court.

The aforesaid deceased defendant’s executor, named Francisco
Romero, filed a demurrer to the amended complaint on the ground that
the court did not have jurisdiction over his person and the subject
matter of the action, and that, furthermore, the plaintiffs lacked
juridical personality to maintain the action brought by them. In an
order dated March 4, 1933, the court sustained the demurrer in question
under the theory that the plaintiffs’ action did not lie inasmuch as
they brought it as heirs of the deceased Pedro Bonnevie y Orsetty,
which capacity they have not yet acquired, not having been declared as
such in the corresponding special proceedings. The plaintiffs duly
excepted and refused to file another amended complaint. Upon petition
of said executor Romero, the court, on March 31, 1933, dismissed the
complaint as to said executor, without costs. The plaintiffs again
excepted and filed a motion for a new trial, which was denied. The
order of dismissal and that sustaining the demurrer gave rise to this
appeal.

The appellants assign the following alleged errors as committed in the appealed orders, to wit:

“I. The trial court erred in holding that the demurrer filed by the defendant-administrator ‘is very well founded’.

“II. The trial court erred in dismissing this action and in denying the
plaintiffs’ motion for a new trial based on the ground that the
judgment in question was contrary to law.”

As above stated, the trial court sustained executor Romero’s
demurrer because in its opinion the plaintiffs, as heirs, were not
entitled to bring an action for the recovery of a sum of money, unless
they were first declared as such heirs in the corresponding special
proceedings. The first assignment of error is directed against this
conclusion.

It is a doctrine already established in this jurisdiction that when
the deceased creditor has left no pending obligations and his heirs are
all of age, said heirs may bring an action for the payment of such
credit without the necessity of instituting intestate or testamentary
proceedings. In the case of Bondad vs. Bondad (34 Phil.,
232), this court held: “When there are no debts outstanding against the
estate, there is no occasion for the intervention of a judicial
administrator. The principles set up by this Supreme Court reaffirmed.
(Ilustre vs. Alaras Frondosa, 17 Phil., 321.)”

In the afore-cited Ilustre case, this court held:

“Under the provisions of the Civil Code (arts. 657
to 661), the rights to the succession of a person are transmitted from
the moment of his death; in other words, the heirs succeeded
immediately to all of the property of the deceased ancestor. The
property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to
them a deed for the same before his death. In the absence of debts
existing against the estate, the heirs may enter upon the
administration of the said property immediately. If they desire to
administer it jointly, they may do so. If they desire to partition it
among themselves and can do this by mutual agreement, they also have
that privilege. The Code of Procedure in Civil Actions provides how an
estate may be divided by a petition for partition in case they can not
mutually agree in the division. When there are no debts existing
against the estate, there is certainly no occasion for the intervention
of an administrator in the settlement and partition of the estate among
the heirs. When the heirs are all of lawful age and there are no debts,
there is no reason why the estate should be burdened with the costs and
expenses of an administrator. The property belonging absolutely to the
heirs, in the absence of existing debts against the estate, the
administrator has no right to intervene in any way whatever in the
division of the estate among the heirs. They are coowners of an
undivided estate and the law offers them a remedy for the division of
the same among themselves. There is nothing in the present case to show
that the heirs requested the appointment of the administrator, or that
they intervened in any way whatever in the present action. If there are
any heirs of the estate who have not received their participation, they
have their remedy by petition for partition of the said estate.”

Following the afore-cited authorities, it is obvious that the
plaintiffs-appellants, as such heirs, may bring the action. However, it
is necessary to determine whether or not the same action lies against
the deceased defendant’s executor and whether or not the first
assignment of error is tenable under the opinion lately adopted by the
court.

It is another clear proposition that in this jurisdiction an action
for the recovery of a sum of money due from the deceased during his
lifetime, should be presented in the form of a claim to the committee
appointed in the intestate or testamentary proceedings of said debtor
and that every pending case against him should be discontinued in order
to give place to such claim (sees. 119, 686, 700 and 703 of the Code of
Civil Procedure). Hence, in its effect, the order sustaining the
demurrer filed by the executor is not without support in law. The
action brought by the plaintiffs against the executor does not lie
because their claim should be presented to the committee appointed, or
which may be appointed, in the testamentary proceedings of Manuel Pardo
y Cecilio. Such procedure should be followed even when the obligation
contracted by the defendants, upon assuming their deceased father’s
debt, were joint and several.

The first assignment of error is likewise unfounded inasmuch as the
court finally abandoned the ground upon which its order was based, and
dismissed the complaint as to the executor, perhaps on the ground
hereinbefore stated. At all events, the amended complaint against the
other defendants subsists, inasmuch as it has not been dismissed, and
the appellants may proceed with their action if they so desire.

The last assignment of error hardly deserves further discussion in
view of this court’s opinion hereinbefore stated, that the
plaintiffs-appellants must present their claim to the committee
appointed in the testamentary proceedings of the codefendant Manuel
Pardo y Cecilio. The trial court correctly denied the plaintiffs’
motion for a new trial on the same ground.

Wherefore, the orders appealed from are hereby affirmed, with the costs of this instance against the appellants. So ordered.

Malcolm, Villa-Real, Hull, and Goddard, JJ., concur.