IN RE ESTATE OF THE DECEASED MONS. JUAN BAUTISTA PERFECTO GORORDO. FATHER EMILIANO MERCADO, PETITIONER AND APPELLEE, VS. MARIA GORORDO VIUDA DE JAEN, TELESFORA JAEN, AND CESAREA…

Monsignor Juan Bautista Perfecto Gorordo,
retired Bishop of Cebu, died in Cebu on December 20, 1934. He left a
will instituting his sister, Maria Gorordo Viuda de Jaen, as the
universal heir to his estate, and in case of her death, his nieces
Telesfora Jaen and Cesarea Gorordo Revilles. He bequeathed part of his
estate to the various persons and entities mentioned in his will, and
named Father Emiliano Mercado, parish priest of San Nicolas, Cebu, as
executor, and in the absence of the latter Father Alejandro Espina,
parish priest of the Cebu Cathedral. The will of the deceased bishop
was probated without opposition and consequently the Court of First
Instance of Cebu confirmed the appointment of Father Emiliano Mercado
as executor after the latter filed a bond of P5,000 fully in accordance
with law.

The heirs Maria Gorordo Viuda de Jaen, Telesfora Jaen and
Cesarea Gorordo de Revilles instituted in the will, however, excepted
to the order of February 15, 1935, appointing Father Emiliano Mereado
as the executor, and in order to insist upon their opposition to the
appointment of said executor, the three heirs, in their motion of
February 23, 1935, prayed for the suspension of said appointment and
for the ad interim designation of Father Alejandro Espina as
special executor, pending decision of the appeal which they expected to
take from the order in question. The lower court denied their motion in
an order of March 4,1935, which they appealed from as wellas from the
order of February 15th of said year on the following grounds:

“I. The lower court erred in overruling the opposition o the heirs of the deceased to the appointment of the executor.

“II. The lower court erred in not holding that the executor’s
confirmation was unnecessary, since there were no debts and their heirs
were all of age and willing to pay or secure the payment of the
legacies.

“III. The court below erred in overruling the
appellants’ objections to the appearance of Attorneys Veloso and Alo as
counsel for the executor and the estate.

“IV. The court below erred in denying the appellants’ motion to suspend the appointment of the executor pending the appeal.”

The appellants’ opposition to the appointment of Father Mereado was
based on his alleged unfitness and incapacity to discharge the duties
of executor for the following reasons: (1) That notwithstanding the
appellants’ opposition, he contracted the services of Attorneys
Hipolito Alo and Gabino R. Veloso to represent him in these proceedings
for the sole purpose of repaying the obligations he owed said Attorney
Alo; (2) that he cannot be impartial as executor because the church of
Sacn Nicolas of which he is parish priest is one of the legatees named
in the will. It being natural that as such parish priest he would favor
the interests of his parish to those of the heirs and the other
legatees, and above all, he is related to some of the legatees; (3)
that as the estate has no debts and the heirs instituted in the will
are all of age and are willing, according to them, to secure payment of
all the legacies, there is no necessity of making the estate incur such
unnecessary expenses as the executor’s fees and expenses and his
attorneys’ fees; (4) that the appellants are better able to protect the
interests of the estate; and (5) that Attorney Margarito E. Revilles,
married to the heir Cesarea Gorordo, is willing to render professional
services to the estate free of charge.

The reasons advanced by the appellants do not seem to carry
sufficient weight to warrant the reversal of the appealed orders. When
the retired bishop Monsignor Juan Bautista Perfecto Gorordo chose
Father Emiliano Mercado as executor and administrator of his estate
after his death, he must have had good and sufficient reasons therefor,
and his will must be respected. The evidence shows that when the
deceased bishop made his will naming said priest in preference to
anybody else, he was in the full enjoyment of his intellectual
faculties. Under the circumstances, it is not only just but also right
to fully comply with his last will; and this is precisely what the
lower court did in confirming the appointment of Father Mercado as
executor herein. As a matter of fact, section 641 of Act No190 provides
that when a will has been probed and allowed, the court is bound to
issue letters testamentary thereon to the person named as executor
therein provided he accepts the trust and gives the bond as required by
law, which Father Emiliano Mercado certainly did willingly before
assuming his trust. While it is true, as the appellants contend, that
this provision of the law should not be strictly interpreted because
the court would be deprived of its power not to appoint, in certain
cases, one who is unworthy of the trust, notwithstanding the fact that
he was named as such by the testator (sec. 653, Act No. 190) ; it is
also true that in order to do this, the unworthiness, incapacity,
ineptitude and unfitness of such person must be manifest and real and
not merely imaginary.

What acts committed by Father Mercado argue against his capacity?
The appellants allege as one of them his having engaged the services of
Attorney Alo, to whom he is under obligation, in order to be able to
repay him in some way not with his own money but with the money of the
estate, thereby insinuating that he lacks the interest which a good
executor must have for the protection of the rights and interest of the
estate entrusted to him. The evidence relative to this matter shows
that Attorneys Hipolito Alo and Gabino R. Veloso were engaged by Father
Bmiliano Mercado not as attorneys for the estate but as his own, in his
capacity as petitioner for the probate of the will of Bishop Monsignor
Juan Bautista Perfecto Gorordo. It shows further that the special
agreement he had with said attorneys (Exhibit 3) was to the effect that
their fees would only be that determined and fixed by the court.

On the other hand, the alleged favors owed by Father Mercado to
Attorney Alo are those inferred from the following excerpt from the
record:

“Q.

Is it true that you owe Attorney Alo favors?

—

A.

Properly they are not favors, but of course, Mr. Alo has been one whom we might call the mediator (puente de plata) between the parishioners of San Nicolas and myself. Thanks to his intervention, many misunderstandings have been dissipated.” (Testimony of Father Mercado, t. s. n., page 35.)

The reason which induced Father Mercado to engage the services of
attorneys Alo and Veloso is, according to his own testimony, that he
has confidence in them (t. s. n., page 34); and explaining why he had
confidence particularly in Attorney Alo, in answer to a question
propounded to him to that effect, he stated:

“A.

Do you think it excessive to engage the services of a lawyer who has your full confidence? Furthermore, speaking to Mr. Alo in private, specifying the services rendered by him, I had the occasion to consult him regarding some cases and without any hesitation he told me: ‘Do not go ahead with that case because you are wrong.’ Thus I have found out that he is an upright and impartial man.” (T. s. n., p. 32.)

This, together with the fact that up to the present Father Mercado
has not jeopardized the interests of the estate, as the lower court has
yet to decide whether his attorneys’ fees should be borne by him or by
the estate, as well as the amount thereof, shows that the first
question raised by the appellants is unfounded.

The
appellants’ allegation that Father Mercado cannot be impartial as
executor because the church of which he is the parish priest is to
receive a legacy of 10,000 under the will, is untenable. His parish is
not a legatee as all that the will provides with respect to said sum of
P10,000 is as follows:

“To the poor of Cebu, Opon, and San Nicolas, I bequeath ten thousand
pesos (P10,000) under the administration and at the discretion of
whomsoever may be the Most Reverend Bishop of the Diocese.”

The foregoing provision does not give Father Mercado as executor, even
the right to intervene in the distribution and disposition of the funds
in question.

The appellants’ proposition not to name any executor to save the estate
unnecessary expenses, as the testator left no debts and his heirs on
the other hand, are willing to secure payment of the legacies, is
untenable. The will contains so many provisions, there are so many
legacies to deliver and pay, and it is premature to assert that the
estate has no obligations or debts to pay, because, on the contrary, it
appears that it has debts and obligations as shown by the committee’s
report of August 29, 1935, that claims amounting to approximately
P40,000 have been filed, that it is absolutely necessary to have an
executor to take charge of the estate so as to protect the interests
thereof and later enforce compliance with the will of the testator.

The appellants’ last proposition that they and Attorney Margarito E.
Revilles—the latter being the husband of the appellant Cesarea
Gorordo—could look after the interests of the estate better than Father
Mercado and attorneys Alo and Veloso, is likewise untenable. The estate
in their hands would be no more immune from irregularities, and the
interests of the legatees amounting to more than those of the heirs
would not be better taken care of because of what may be inferred from
the incident which took place during the preparation of the inventory
of the estate left by the testator. Said incident may be inferred from
the following excerpt from the record:

“Q.

You said that you did not wish to engage the services of Attorney Revilles because as a member of the family he may not be impartial. Since when did you have such opinion?

—

A.

I have formed this opinion in view of the fact that when we were preparing the inventory, there appeared therein shares of the Monte de Piedad which, according to Mr. Revilles, should not be included in the inventory because they were not in the will. I said: ‘Even the last pin found in the safe will appear in the inventory.’ ” (Testimony of Father Mercado, t. s. n., p. 32.)

For the foregoing reasons, the appellants’ appeal is declared
unfounded and is, therefore, dismissed, affirming the orders appealed
from with costs. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Laurel, and Concepcion, JJ., concur