IN RE GUARDIANSHIP OF THE MINOR MARIA EXALTACION CASTILLO. COSME U. CASTILLO, PETITIONER AND APPELLANT, VS. POTENCIANO BUSTAMANTE, GUARDIAN AND APPELLEE.

Cosme U. Castillo and Serapia de Gala were
married in the year 1889 and had several children of whom Maria
Exaltacion Castillo, who was born in 1915, is the only survivor. On May
29, 1933, Serapia de Gala instituted a civil action against her husband
Cosme U. Castillo, praying for the legal separation of both, as
spouses, and for the division of the property acquired by them during
their marriage. They compromised said suit on October 18,1933, and
agreed that each spouse should possess and dispose for his or her
exclusive benefit of his or her respective paraphernal or private
property together with the fruits or income thereof, and that both
shall assign to their daughter Maria Exaltacion the conjugal property
described in the deed of compromise, with the onerous conditions
specified therein. On November 1, 1933, the court rendered its decision
in accordance with the terms of the compromise, the dispositive part of
which reads as follows:

“Wherefore, and upon petition of the parties,
said deed of compromise is approved in each and every one of its
clauses, paragraphs, conditions and stipulations, and it is declared
that both parties are mutually bound to comply with said conditions,
terms or stipulations.”

On October 18, 1933, the spouses, in compliance with the compromise
and with the above-quoted dispositive part of the court’s decision,
executed the donation of the conjugal property to their daughter Maria
Exaltacion, to become effective after the acceptance thereof by the
donee through her duly authorized guardian. Potenciano Bustamante, who
was appointed guardian of the then minor Maria Exaltacion Castillo,
accepted the donation in such capacity on June 27, 1935.

On July 15th, the guardian filed a petition in court praying that
the property belonging to the guardianship be delivered to him by Cosme
U. Castillo who retains it in his possession. The court, acting
favorably upon his petition, ordered Cosme U. Castillo, under threat of
contempt of court, to turn over to and place the guardian Potenciano
Bustamante, within thirty days from the time he is notified of said
order, in possession of all the property described in the deed of
compromise and donated later to Maria Exaltacion Castillo. To cure any
defect in the acceptance of the donation by the guardian, the court, in
this same order, directed the guardian to execute the necessary deed to
this effect and to notify the donors Cosme U. Castillo and Serapia de
Gala thereof. The appeal now under consideration was taken from this
resolution.

Inasmuch as the property had been donated and the donation later
accepted by the donee’s guardian, the ownership thereof became vested
in the donee. Maria Exaltacion’s guardian, who is under obligation to
administer her property, is entitled, as prayed by him and as provided
by the court in its appealed order, to take possession of this property
and recover it from Cosme U. Castillo who retains it.

The appellant alleges against the appealed order that the donation
is of no effect, having been revoked before it was accepted. It is true
that it was revoked but this defense is without merit. The donation was
made by virtue of a compromise which, having been made to terminate a
suit between the appellant and his wife, has the authority of res judicata.
Furthermore, it has such authority because it is the decision rendered
by the court in said civil case, pursuant to the terms of the
compromise (art. 1816 of the Civil Code). The appellant, by himself
alone, cannot revoke said donation having such requisites.

Furthermore, the court, under section 573 of the Code of Civil
Procedure, had jurisdiction to enter the appealed order issued by it in
these guardianship proceedings. (Mercader vs. Wislizenus, 34 Phil, 846).

The order appealed from is affirmed, with the costs to the appellant. So ordered.

Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.

Order affirmed.

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RESOLUTION ON MOTION FOR RECONSIDERATION

December 17, 1937

AVANCENA, C. J.:

In his motion for reconsideration of the decisions rendered in
these two cases,1 the appellant insists that the guardianship court had
no jurisdiction to issue its order of July 26, 1935, directing him to
turn over to the guardian Potenciano Bustamante all the properties
donated by him to the minor Maria Exaltacion Castillo, together with
all the documents, titles and deeds relative thereto.

The appellant invokes decisions rendered by this court on the
interpretation of section 709 of the Code of Civil Procedure. This
section reads:

“SEC. 709. Proceedings for the recovery of property embezzled or fraudulently conveyed.—If
an executor or administrator, heir, legatee, creditor, or other person
interested in the estate of a deceased person complains to the court
.having jurisdiction of the estate, that a person is suspected of
having concealed, embezzled, or conveyed away any of the money, goods
or chattels of the deceased, or that such person has in his possession,
or has knowledge of any deed, conveyance, bond,’ contract, or other
writing which contains evidence of, or tends to disclose the right,
title, interest, or claim of the deceased to real or personal estate,
or the last will and testament of the deceased, the court may cite such
suspected person to appear before it, and may examine him on oath on
the matter of such complaint ; if the person so cited refuses to appear
and answer such examination, or to answer such interrogatories as are
put to him, the court may, by warrant, commit him to the jail or prison
of the province, there to remain in close custody until he submits to
the order of the court; and such interrogatories and answers shall be
in writing and signed by the party examined, and filed in the clerk’s
office.”

The decisions referred to by the appellant (Chanco vs. Madrilejos and Abreu, 12 Phil., 543; Alafriz vs. Mina, 25 Phil., 137; Guanco vs.
National Bank, 54 Phil., 244) hold that the jurisdiction granted to the
court by this section is limited to examining, under oath, persons
suspected of having” in their possession property belonging to the
estato and causing said examination to be made by means of
interrogatories and answers in1 writing signed by the party examined
and filed in the clerk’s office. This section comes under the chapter
on administration of estates of deceased persons.

The order of July 26, 1935, in question, was issued by the court in
a guardianship proceeding by virtue of section 573, which reads as
follows:

“SEC. 573. Examination of person suspected of defrauding wards or concealing property.—Upon
complaint made to him by any guardian, ward, creditor, or other person
interested in the estate or having a prospective interest therein, as
heir or otherwise, against anyone suspected of having concealed,
embezzled, or conveyed away, any money, goods, or interest, or an
instrument in writing belonging to the ward or to his estate, the Court
of First Instance, or the judge thereof, of the province wherein the
guardian was appointed, may cite such suspected person to appear before
such judge or court, and may examine him touching such money, goods,
effects, or instrument, and may make such order as is necessary to
secure the estate against such concealment, embezzlement, or
conveyance.”

In the wording of both sections there is a substantial difference
indicating different purposes in the law. Section 709, after referring
to the examination of the suspected person, merely provides that such
examination be made by means of interrogatories and answers signed by
the party examined and filed in the clerk’s office. Section 573
expressly authorizes the judge or court to make such orders as are
necessary to secure the estate against concealment, embezzlement, or
conveyance. For this reason, notwithstanding the decisions cited by the
appellant relative to the interpretation of section 709, wherein this
court clearly held that the jurisdiction of the probate court is
limited to the examination of the suspected person and the conservation
of his statement, this same court, interpreting section 573, rendered
the decision in the case of Mercader vs. Wislizenus (34
Phil., 846). This case involved the guardianship of the lunatic Vicenta
Escio. In view of the allegation of her guardian that one Cesar
Mercader had taken possession of and was engaged in secreting certain
property of the incompetent, the court issued an order requiring
Mercader to appear before the court to show cause why he should not
deliver the property to the guardian. This court held that the judge
had jurisdiction to issue said order. It is inferred therefrom that if
the judge finds the cause alleged insufficient to warrant nondelivery
of the possession of the property, he could, if he deems it necessary
for the protection thereof, order said property delivered to the
guardian. That the judge has jurisdiction to require that cause be
shown why the property should not be delivered, would be entirely
devoid of any purpose if, in the end, whatever the cause alleged may
be, whether satisfactory or not, he could not order the delivery
thereof to the guardian, as a measure of protection.

It should be borne in mind, however, that such order does not have
the effect of a final declaration of rights preventing the appellant
from instituting any action relative to the property in question. It
being established by the facts stated in the decision that the
properties have passed to the minor by donation agreed to by the
appellant and ordered, upon his petition, in a final judicial decision
consented to and complied with by him, it is not the attorney for the
minor but the appellant who, at all events, should bring the
corresponding action, if he desires to attack this title of the minor
to the properties.

The reconsideration applied for is denied. So ordered.

Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Conception, JJ., concur.

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^[1] No. 44466 (Castillo vs. Bustamante) and No. 45477 (Castillo vs. Platon)