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Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,

vs. MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants. C. de la Victoria for appellees.

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:

From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at

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the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ., concur.

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[G.R. No. 32636. March 17, 1930.]

In the matter of the Estate of Edward Randolph Hix, deceased. A. W. FLUEMER, Petitioner-Appellant, v. ANNIE COUSINS HIX, Oppositor-

Appellee.

C. A. Sobral, for Appellant.

Harvey & OBrien and Gibbs & McDonough, for Appellee.

SYLLABUS

1. WILLS; EXECUTORS AND ADMINISTRATORS; CODE OF CIVIL PROCEDURE, SECTION 781, AS AMENDED, APPLIED; RIGHT OF

SPECIAL ADMINISTRATOR TO APPEAL FROM DISALLOWANCE OF A WILL. The special administrator of an estate is a "person interested in the

allowance or disallowance of a will by a Court of First Instance," within the meaning of section 781, as amended, of the Code of Civil Procedure, and so may be permitted to appeal to the Supreme Court from the disallowance of a

will.

2. ID.; ID.; CONFLICT OF LAWS; CODE OF CIVIL PROCEDURE, SECTIONS 300 AND 301, APPLIED. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. The requirements of

sections 300 and 301 of the Code of Civil Procedure must be met.

3. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTION 633, APPLIED. The due execution of a will alleged to have been executed in another

jurisdiction must be established. Where the witnesses to the will reside without the Philippine Islands, it is the duty of the petitioner to prove

execution by some other means.

4. ID.; ID.; ID.; DOMICILE. Where it is desired to establish the execution of a will in another jurisdiction, it is necessary to prove that the testator had

his domicile in that jurisdiction and not in the Philippine Islands.

5. ID.; ID.; ID.; CODE OF CIVIL PROCEDURE, SECTIONS 637, 638, AND 639, APPLIED. Where it is desired to prove the probate of a will in

another jurisdiction and the appointment in that jurisdiction of an administrator for the estate of the deceased, the moving party must comply

with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure by requesting a hearing on the question of the allowance of a will

said to have been proved and allowed in another jurisdiction.

D E C I S I O N

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason denying the probate of the document alleged to be the last will and testament of the deceased. Appellee contends that the appellant as a mere special administrator is not authorized to carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings, was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva v. De Leon [1925], 47 Phil., 780). It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence of two competent witnesses, or that these witnesses subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to require. On the supposition that

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the witnesses to the will reside without the Philippine Islands, it would then be the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633). It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the petitioner. Also in beginning administration proceedings originally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in the Philippine Islands. While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West Virginia the ancillary administration. However this may be, no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that he left any in West Virginia. Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West Virginia. The present proceedings do not call for any specific pronouncements on the validity or invalidity of this alleged divorce. For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the Appellant. Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

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[G.R. No. L-20234. December 23, 1964.]

PAULA DE LA CERNA, ET AL., Petitioners, v. MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF

APPEALS, Respondents.

Philip M. Alo and Crispin M. Menchavez, for Petitioners.

Nicolas Jumapao for Respondents.

SYLLABUS

1. JUDGMENTS; PROBATE COURTS; ERROR OF LAW DOES NOT AFFECT JURISDICTION OF NOR CONCLUSIVE EFFECT OF DECISION. An error of law committed in admitting a joint will to probate does not affect the jurisdiction of the probate court nor the conclusive effect of its final decision. 2. ID.; ID.; PROBATE DECREE OF JOINT WILL AFFECTS ONLY SHARE OF DECEASED SPOUSE. A final probate decree of a joint will of husband and wife affects only the share of the deceased spouse and cannot include the disposition of the share of the surviving spouse. The validity of said joint will, in so far as the estate of the latter spouse is concerned, must be, on her death, reexamined and adjudicated de novo. 3. WILLS; EFFECT OF VALIDITY OF JOINT WILL AS TO SHARE OF WIFE WHO DIES LATER THAN THE HUSBAND. Where a husband and wife executed a join will and upon the death of the husband, said will was admitted to probate by a final decree of the court although erroneous, and the wife dies later, it is held that said first decree of probate affects only the estate of the husband but cannot affect the estate of the wife, considering that a joint will is a separate will of each testator, and a joint will being prohibited by law, the estate of the wife should pass upon her death to her intestate heirs and not to the testamentary heirs, unless some other valid will is shown to exist in favor of the latter or unless the testamentary heir is the only heir intestate of said wife.

D E C I S I O N

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition. The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp 2-4):jgc:chanrobles.com.ph "It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot, and that while each of the testator is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned, the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939, in Special Proceedings No. 499, declara legalizado el documento Exhibito A como el testamento y ultima voluntad del finado Bernabe de la Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y otra testadora al proprio tiempo segun el Exhibito A de gozar de los frutos de los terrenos descritos en dicho documento; y habido consideracion de la cuantia de dichos bienes, se derecta la distribucion sumaria de los mismos en favor de la legataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la suma de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Cerna dentro de los aos desde esta fecha. (Act. Esp. 499, Testamentaria Finado Bernabe de la Cerna). Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca)."cralaw virtua1aw library The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint

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wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:jgc:chanrobles.com.ph ". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon v. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying assuming that the joint will in question is valid."cralaw virtua1aw library Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna. The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament, despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo v. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors, judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay v. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the Rules of Court 1963 Ed., p. 322). Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this count, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1939 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the Civil Code, a will could not be probated during the testators lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the Court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao v. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon v. Saavedra, 51 Phil., 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950). WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No costs. Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

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FIRST DIVISION

[G.R. No. L-6044. November 24, 1952.]

FORTUNATA VDA. DE RODRIGUEZ, BENJAMIN RODRIGUEZ, MERCEDES RODRIGUEZ DE CRUZ, HERMINIA RODRIGUEZ DE

HALLARE, LUZ RODRIGUEZ DE CARLOS and ANTONIO RODRIGUEZ, Petitioners, v. HON. BIENVENIDO A. TAN, Judge of the

Court of First Instance of Rizal, and ABELARDO RODRIGUEZ, Respondents.

Godofredo C. Montesines and Antonio Rodriguez, for Petitioners.

Lorenzo Sumulong, Guillermo Romero and Antonio C. Masaquel

for Respondent.

Roman Ozaeta as amicus curi.

SYLLABUS

1. DESCENT AND DISTRIBUTION; PARTITION, ADMINISTRATOR, APPOINTMENT OF. Section 1 of Rule 74 does not preclude the heirs

from instituting administration proceedings, even if the estate has no debts or obligation, if they do not desire to resort for good reasons to an ordinary

action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of

partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may. If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that

the word may is used not only once but in the whole section, which indicates an intention to leave the matter entirely to the discretion of the heirs.

D E C I S I O N

BAUTISTA ANGELO, J.:

This is a petition for certiorari seeking to nullify the order of respondent Judge dated August 11, 1952, wherein after overruling the opposition to the institution of the intestate estate proceedings of the late Flaviano Rodriguez, he appointed Abelardo Rodriguez administrator of the estate upon filing a

bond in the sum of P2,000. It is averred in the petition that Flaviano Rodriguez died on February 8, 1944, at Paraaque, Rizal, leaving an estate with a value of P10,000; that the surviving heirs are the widow, Fortunata Vda. de Rodriguez, and six children who are the petitioners and respondent Abelardo Rodriguez; that after the death of Flaviano Rodriguez all the heirs, who were then already of age, entered into a verbal agreement whereby they agreed not to make a liquidation of the estate but to place it under the administration of the widow with the understanding that each of the six children would be entitled to receive a portion of the income in equal shares from year to year for the needs of their families provided that they do not exceed the participation to which they are entitled; that on March 19, 1952, or eight years after the death of Flaviano Rodriguez, respondent Abelardo Rodriguez filed a petition for administration of the intestate estate of said deceased in spite of his knowledge that the estate had no debts and all the heirs were of age; that on June 2, 1952, the other heirs, petitioners herein, objected to the petition invoking the rule that if the estate is free from obligations and the heirs are all of age, no administration proceedings shall be allowed; that on August 11, 1952, respondent Judge, after overruling the opposition, appointed Abelardo Rodriguez administrator of the estate upon filing the requisite bond. Respondents herein, in answer to the petition, admitted the existence of a verbal agreement entered into between the heirs in 1944, wherein they agreed not to liquidate the estate and to place it under the administration of the widow in view of the unsettled conditions then prevailing at the time, but they contend that while that was the understanding the same was not carried out because in reality it was Benjamin Rodriguez, one of the petitioners herein, who took over the administration of the estate and in the discharge of his duties he failed and refused to give to respondent Abelardo Rodriguez his share in the income which he badly needed for the support of his family, for which reason he started the intestate proceedings which gave rise to the present petition for certiorari. The issue to be determined is whether respondent Judge acted properly in maintaining the administration proceedings and in appointing Abelardo Rodriguez as administrator of the estate notwithstanding the fact that the estate has no debts and all the heirs entitled to share in its distribution are all of age. Under section 1, rule 74 of the Rules of Court, if the decedent left no debts and the heirs are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit, and should they disagree, they may do so in an ordinary action of partition.

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Construing the scope of said section 1, (formerly section 596, Act No. 190), this Court repeatedly held "that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the court. It has been uniformly held that in such case the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings" (Ilustre v. Alaras Frondosa, 17 Phil., 321; Malahacan v. Ignacio, 19 Phil., 434; Bondad v. Bondad, 34 Phil., 232; Baldemor v. Malangyaon, 34 Phil., 367; Fule v. Fule, 46 Phil., 317; Utulo v. Pasion de Garcia, 66 Phil., 302). It, therefore, appears from said section 1, as construed by this Court, that when the estate has no pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, for the reason that it is superfluous or unnecessary, and in most cases long and costly, in which case the way left to the heirs is to divide the estate among themselves as they may see fit, and should they disagree, they may do so in an ordinary action of partition. But, is this pattern mandatory upon the heirs? Should the heirs be unable to agree on a settlement of the estate, do they have to resort necessarily to an ordinary action of partition? Can they not choose to institute administration proceedings? Our answer is that section 1 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligation, if they do not desire to resort for good reasons to an ordinary action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may. If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that the word may is used not only once but in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. The inquiry before us is not new. In a case where one of the heirs chose to institute administration proceedings in court, even if the estate had no debts, and the widow sought to dismiss the case invoking in support of her contention the doctrine enunciated in the cases already adverted to, this Court said:jgc:chanrobles.com.ph "The principal ground of the opposition is that the heirs being of legal age, and there being no proof that there is any valid and effective credit against

the deceased, no legal reason exists for the court to appoint an administrator, as prayed for in the petition, citing in support of this contention the doctrine enunciated in the cases of Ilustre v. Alaras Frondosa (17 Phil., 321); Bondad v. Bondad (34 Phil., 232); Baldemor v. Malangyaon (34 Phil., 367). It is true that, under section 596 of the Code of Civil Procedure, whenever all the heirs of a person who died intestate are of lawful age and legal capacity, and there are no debts due from the estate, or all the debts have been paid, the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without court proceedings. But there is nothing in this section which prohibits said heirs from instituting special proceedings for the administration of the intestate estate if they cannot agree on the extrajudicial partition and apportionment of the same." (Orozco v. Garcia, 50 Phil., 149, 151.) In this particular case, however, we find that the core of petitioners objection is not that the heirs have erroneously instituted these administration proceedings but that the court erred in appointing Abelardo Rodriguez administrator of the estate. It is claimed that Abelardo Rodriguez was appointed administrator without the petitioners having been given an opportunity to be heard. But this claim has no basis it appearing that the parties had been duly heard before the court issued its order now complained of. It appears that both parties had submitted the names of the persons they wanted to be appointed as administrator and the court made its choice only after weighing the fitness and qualifications of the persons recommended. Thus, on this point, the court said:jgc:chanrobles.com.ph "The petitioner in this case appears to be fully qualified to act as administrator of the estate of the deceased Flaviano Rodriguez, and does not possess any of the disqualifications. Moreover, he is one of the heirs left by the deceased. Inasmuch as none of the oppositors appear to be more qualified to act as administrator of the estate, the Court is inclined to grant the petition presented by Abelardo Rodriguez." (Annex D). The petition is dismissed, with costs. The preliminary injunction issued is hereby dissolved. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo and Labrador, JJ., concur.

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