Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2659 October 12, 1950
In the matter of the testate estate of Emil Maurice Bachrach, deceased. MARY McDONALD BACHRACH,petitioner-appellee,
vs.
SOPHIE SEIFERT and ELISA ELIANOFF, oppositors-appellants.
Ross, Selph, Carrascoso and Janda for appellants.
Delgado and Flores for appellee.

OZAETA, J .:
Is a stock dividend fruit or income, which belongs to the usufructuary, or is it capital or part of the corpus of the estate, which pertains to
the remainderman? That is the question raised in the appeal.
The deceased E. M. Bachrach, who left no forced heir except his widow Mary McDonald Bachrach, in his last will and testament made
various legacies in cash and willed the remainder of his estate as follows:
Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the fruits and
usufruct of the remainder of all my estate after payment of the legacies, bequests, and gifts provided for above; and she may
enjoy said usufruct and use or spend such fruits as she may in any manner wish.
The will further provided that upon the death of Mary McDonald Bachrach, one-half of the all his estate "shall be divided share and
share alike by and between my legal heirs, to the exclusion of my brothers."
The estate of E. M. Bachrach, as owner of 108,000 shares of stock of the Atok-Big Wedge Mining Co., Inc., received from the latter
54,000 shares representing 50 per cent stock dividend on the said 108,000 shares. On June 10, 1948, Mary McDonald Bachrach, as
usufructuary or life tenant of the estate, petitioned the lower court to authorize the Peoples Bank and Trust Company as administrator
of the estate of E. M. Bachrach, to her the said 54,000 share of stock dividend by endorsing and delivering to her the corresponding
certificate of stock, claiming that said dividend, although paid out in the form of stock, is fruit or income and therefore belonged to her as
usufructuary or life tenant. Sophie Siefert and Elisa Elianoff, legal heirs of the deceased, opposed said petition on the ground that the
stock dividend in question was not income but formed part of the capital and therefore belonged not to the usufructuary but to the
remainderman. And they have appealed from the order granting the petition and overruling their objection.
While appellants admits that a cash dividend is an income, they contend that a stock dividend is not, but merely represents an addition
to the invested capital. The so-called Massachusetts rule, which prevails in certain jurisdictions in the United States, supports
appellants' contention . It regards cash dividends, however large, as income, and stock dividends, however made, as capital. (Minot vs.
Paine, 99 Mass., 101; 96 Am. Dec., 705.) It holds that a stock dividend is not in any true sense any true sense any dividend at all since
it involves no division or severance from the corporate assets of the dividend; that it does not distribute property but simply dilutes the
shares as they existed before; and that it takes nothing from the property of the corporation, and nothing to the interests of the
shareholders.
On the other hand, so called Pennsylvania rule, which prevails in various other jurisdictions in the United States, supports appellee's
contention. This rule declares that all earnings of the corporation made prior to the death of the testator stockholder belong to the
corpus of the estate, and that all earnings, when declared as dividends in whatever form, made during the lifetime of the usufructuary or
life tenant. (Earp's Appeal, 28 Pa., 368.)
. . . It is clear that testator intent the remaindermen should have only the corpus of the estate he left in trust, and that all
dividends should go the life tenants. It is true that profits realized are not dividends until declared by the proper officials of the
corporation, but distribution of profits, however made, in dividends, and the form of the distribution is immaterial. (In
re Thompson's Estate, 262 Pa., 278; 105 Atl. 273, 274.)
In Hite vs. Hite (93 Ky., 257; 20 S. W., 778, 780), the Court of Appeals of Kentucky, speaking thru its Chief Justice, said:
. . . Where a dividend, although declared in stock, is based upon the earnings of the company, it is in reality, whether called by
one name or another, the income of the capital invested in it. It is but a mode of distributing the profit. If it be not income,
what is it? If it is, then it is rightfully and equitably the property of the life tenant. If it be really profit, then he should have it,
whether paid in stock or money. A stock dividend proper is the issue of new shares paid for by the transfer of a sum equal to
their par value from the profits and loss account to that representing capital stock; and really a corporation has no right to a
dividend, either in cash or stock, except from its earnings; and a singular state of case it seems to us, an unreasonable one
is presented if the company, although it rests with it whether it will declare a dividend, can bind the courts as to the proper
ownership of it, and by the mode of payment substitute its will for that of that of the testator, and favor the life tenants or the
remainder-men, as it may desire. It cannot, in reason, be considered that the testator contemplated such a result. The law
regards substance, and not form, and such a rule might result not only in a violation of the testator's intention, but it would give
the power to the corporation to beggar the life tenants, who, in this case, are the wife and children of the testator, for the
benefit of the remainder-men, who may perhaps be unknown to the testator, being unborn when the will was executed. We are
unwilling to adopt a rule which to us seems so arbitrary, and devoid of reason and justice. If the dividend be in fact a profit,
although declared in stock, it should be held to be income. It has been so held in Pennsylvania and many other states, and we
think it the correct rule. Earp's Appeal, 28 Pa. St. 368; Cook, Stocks & S. sec. 554. . . .
We think the Pennsylvania rule is more in accord with our statutory laws than the Massachusetts rule. Under section 16 of our
Corporation Law, no corporation may make or declare any dividend except from the surplus profits arising from its business. Any
dividend, therefore, whether cash or stock, represents surplus profits. Article 471 of the Civil Code provides that the usufructuary shall
be entitled to receive all the natural, industrial, and civil fruits of the property in usufruct. And articles 474 and 475 provide as follows:
ART. 474. Civil fruits are deemed to accrue day by day, and belong to the usufructuary in proportion to the time the usufruct
may last.
ART. 475. When a usufruct is created on the right to receive an income or periodical revenue, either in money or fruits, or the
interest on bonds or securities payable to bearer, each matured payment shall be considered as the proceeds or fruits such
right.
When it consists of the enjoyment of the benefits arising from an interest in an industrial or commercial enterprise, the profits
of which are not distributed at fixed periods, such profits shall have the same consideration.lawphil.net
In either case they shall be distributed as civil fruits, and shall be applied in accordance with the rules prescribed by the next
preceding article.
The 108,000 shares of stock are part of the property in usufruct. The 54,000 shares of stock dividend are civil fruits of the original
investment. They represent profits, and the delivery of the certificate of stock covering said dividend is equivalent to the payment of said
profits. Said shares may be sold independently of the original shares, just as the offspring of a domestic animal may be sold
independently of its mother.
The order appealed from, being in accordance with the above-quoted provisions of the Civil Code, his hereby affirmed, with costs
against the appellants.
Moran, C. J., Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.















SECOND DIVISION

[G.R. No. L-1379. December 19, 1947.]

SOPHIE M. SEIFERT and ELISA ELIANOFF, Petitioners, v. MARY MCDONALD BACHRACH, in her capacity as
administratrix of the estate of the deceased E. M. Bachrach, and CONRADO BARRIOS, Judge of First
Instance of Manila, Respondents.

Ross, Selph, Carrascoso & Janda, for Petitioners.

Delgado, Dizon & Flores for Respondents.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Esmeraldo Umali for the Government.

SYLLABUS
1. OBLIGATIONS AND CONTRACTS; CONFORMITY TO PETITION FILED IN COURT; LIBERALITY AS CONSIDERATION.
The respondents allege that the conformity given by M. McD. B. to the petition of September 16, 1940, as well as
the payments made by her of the monthly allowances under the order of October 2, 1940, "was an act of pure
liberality on her part and, therefore, could not be construed as giving rise to any obligatory relations between said
respondent executrix and the parties receiving said monthly allowances." The allegation is unacceptable. Conformity is
consent. According to a universal law, recognized in the Civil Code, consent is the source of obligations. That
respondent has given her conformity as an act "of pure liberality on her part" does not change the nature of the legal
effect of the consent given. The commitment she made with her conformity cannot be dismissed upon the ground that
it was given as "pure liberality" or for any other motive. Provided the consent was freely given, and regardless of the
motive behind the act, it gives rise to all proper legal effects. The conformity or agreement of all the parties to the
petition of September 16, 1940, gives it the nature of a contract. The contracting parties are bound to respect and to
abide by the commitments in said contract. The contract cannot be lightly dismissed. Respondents allegation that M.
McD. B. had given her conformity without any consideration, is belied by her own allegation to the effect that she
gave said conformity as "an act of pure liberality on her part." Pure liberality is a consideration recognized by the Civil
Code. No other consideration is entertained in donations.

2. ID.; ID.; ID.; APPROVAL BY COURT, EFFECT OF ON CONTRACT. The contract in this case has the added force
and solemnity of having been approved by the order of judge A of October 2, 1940. The contract has been elevated to
the category of a judgment. Its enforceability depends not only on the good faith of the parties but on a legal and
executory order issued by a competent court. While respondent M. M. B. cannot ignore her plighted word, she has
absolutely no right to consider the order of October 2, 1940, as a mere scrap of paper. Otherwise, if their orders could
be simply ignored, challenged or taken with scorn, there is no use for the existence of courts.

3. ID.; ID.; ID.; ALLOWANCES, AGREEMENT TO PAY, IN ABSENCE OF PROVISION IN WILL OR IN LAW.
Respondents alleged that "there is no provision in the will of the deceased E. M. Bachrach or in any statute requiring"
the payment of the monthly allowances provided in the order of October 2, 1940. But is there any prohibition for the
parties to agree in the payment of said monthly allowances? Was there any reason for the lower court to withhold its
approval to the agreement? The allegation seems to imply an argument based on the denial of the basic right of the
parties to enter into any kind of agreement neither forbidden by law nor against public morals.

4. ID.; ID.; ID.; ID.; ORDER OF COURT INSTRUCTING PAYMENT OF ALLOWANCES, EFFECT OF. The respondents
alleged that the order of October 2, 1940, "was not intended to be a judicial mandate but merely an authority for the
respondent Mary McDonald Bachrach to do certain acts which she could not perform under the law or under the
provisions of the will of the deceased E. M. Bachrach without judicial authority." The allegation finds no support in the
order wherein M. McD. B. is "authorized and instructed forthwith to pay" the monthly allowances in question.
Instructed means commanded. The inclusion of the last word negatives respondents allegation. M. McD. B. did not
appeal against the order. She cannot now deny validity to the command involved in the word "instructed." Besides, an
"order," the title of the document, cannot be anything other than a mandate, compulsory by nature.

5. ID.; ID.; ID.; USUFRUCT; RIGHT OF USUFRUCTUARY TO TRANSFER. Impairment of her usufruct is also alleged
by the administratrix. How can she now complain of the alleged impairment after alleging that she gave her
conformity to the agreement, the basis of the order of October 2, 1940, as "an act of pure liberality on her part?" Was
she not the owner of her usufruct? Could she not give away her usufruct or any part of it in favor of any person? If
she disposed of a portion of said usufruct for the benefit of the sisters of her deceased husband, without being subject
to compulsion, or fraud, or mistake, but freely and conscientiously, there is no reason for her to complain now.

6. ID.; ID.; ID.; ALLOWANCES AS ADVANCES OF INHERITANCE NOT COVERED BY MORATORIUM. Allowances due
and payable to heirs as advances of their inheritance, are not covered by the moratorium provided in Executive
Orders Nos. 25 and 32, which refer to debts.


D E C I S I O N


PERFECTO, J.:


Petitioners, sisters and heirs of the late E. M. Bachrach, who died in Manila on September 28, 1937, pray for a
command from this Court calculated to compel the lower court to execute its order of October 2, 1940, which reads as
follows:jgc:chanrobles.com.ph

"Upon consideration of the petition of Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine,
of September 16, 1940, wherein they pray that the administratrix and usufructuary of the properties left by the
deceased E. M. Bachrach be authorized to pay them, beginning July 1, 1940, and until they receive their share of the
estate left by the deceased E. M. Bachrach upon the death of his widow, a monthly allowance of P500; P250; P250;
and P250, respectively, and the additional sum of P3,000 to the said Sophie M. Seifert, who is in poor health, the said
allowances to be deducted from their shares of the estate of the deceased E. M. Bachrach upon the death of his
widow, Mary McDonald Bachrach;

"All the parties interested in the estate left by the deceased E. M. Bachrach having expressed their conformity to the
said petition, and there existing no reason why the same should not be granted.

"Petition granted; and the administratrix and usufructuary Mary McDonald Bachrach is hereby authorized and
instructed forthwith to pay to the said Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine
a monthly allowance of five hundred (P500) pesos; two hundred fifty (P250) pesos; two hundred fifty (P250) pesos;
and two hundred fifty (P250) pesos, respectively, beginning July 1, 1940, and until the said heirs receive their share
of the estate left by the deceased E. M. Bachrach upon the death of his widow, and the additional sum of three
thousand (P3,000) pesos to the heir Sophie M. Seifert.

"The payment of the monthly allowances herein granted to the said heirs Sophie M. Seifert, Ginda M. Skundina, Elisa
Elianoff and Annie Bachrach Levine other than those corresponding to the months of July, August and September,
shall be made on or before the 5th day of each month, beginning October, 1940; shall be taken from the properties to
be turned over to the heirs of the deceased E. M. Bachrach and the usufruct of which will belong to his widow, Mary
McDonald during her life; and shall be deducted from the share of the said heirs of the estate of the deceased E. M.
Bachrach upon the death of his widow.

"Upon verbal petition of Attorney Carrascoso, and it appearing from the record that two of the clients whom his law
firm represents reside outside of the Philippines, the administratrix and usufructuary, Mary McDonald Bachrach, is
hereby authorized and instructed to pay directly to Attorneys Ross, Lawrence, Selph & Carrascoso the monthly
allowances corresponding to the heirs Sophie M. Seifert, Ginda M. Skundina, and Elisa Elianoff.

"No opposition having been filed to the amended report, rendition of accounts, and liquidation of the community
property of the conjugal partnership of E. M. Bachrach, deceased, and Mary McDonald Bachrach as surviving spouse
presented by the administratrix under date of September 17, 1940, the same are hereby approved and granted. It is
so ordered."cralaw virtua1aw library

"QUIRICO ABETO

"Judge"

The petition in virtue of which the above order was issued and to which all the interested parties in the estate have
expressed their conformity, as stated in the order, reads as follows:jgc:chanrobles.com.ph

"Comes now Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff, and Annie Bachrach, and to this Honorable Court
respectfully state:jgc:chanrobles.com.ph

"1. That paragraph sixth and eighth of the will of the deceased E. M. Bachrach provide as
follows:jgc:chanrobles.com.ph

"Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the
fruits and usufruct of the remainder of all my estate after payment of the legacies, bequests and gifts provided for
above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.

"Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real
and otherwise, and all the fruits and usufruct thereof which during her life pertained to her, shall be divided as
follows:jgc:chanrobles.com.ph

"One-half (1/2) thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case
she fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall distribute it,
share and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the
Philippines or of the United States:" One-half (1/2) thereof shall be divided, share and share alike by and between my
legal heirs, to the exclusion of my brothers.

"2. That on July 22, 1940, this Court entered the following order:jgc:chanrobles.com.ph

"It appearing from the report filed by the commissioner, the Acting Assistant Clerk of the Court, that the only heirs of
the deceased E. M. Bachrach, according to the evidence presented, are his widow Mary McDonald Bachrach and his
sisters Sophie M. Seifert, Annie Bachrach, Ginda Skundina and Elisa Elianoff, the Court hereby declares said Mary
McDonald Bachrach, Sophie M. Seifert, Annie Bachrach, Ginda Skundina and Elisa Elianoff as the only legal heirs of
said deceased, all of whom are of legal age.

"So ordered.

"Your petitioners who are the legal heirs of the deceased E. M. Bachrach beside his widow, Mary McDonald Bachrach,
respectfully request that she, as administratrix and usufructuary of her deceased husbands properties, be authorized
to pay your petitioners from and after July 1, 1940, and until they receive their share of the estate left by the
deceased E. M. Bachrach upon the death of his widow, a monthly allowance of P500, P250, P250, and P250,
respectively, and the additional sum of P3,000 to the heir Sophie M. Seifert, who is in poor health, the said allowances
to be deducted from your petitioners share of the estate of the deceased E. M. Bachrach upon the death of the
widow;

"All parties interested in the estate left by the deceased E. M. Bachrach are agreeable to this petition.

"Manila, September 16, 1940.

"ROSS, SELPH, CARRASCOSO & JANDA

By (Sgd.) "ANTONIO T. CARRASCOSO, Jr.

Attorneys for Ginda M. Skundina,

Elisa Elianoff, and Sophie Seifert

414 National City Bank Bldg., Manila

"We agree:chanrob1es virtual 1aw library

(Sgd.) "ANNIE BACHRACH

(Sgd.) "MARY McDONALD BACHRACH

Administratrix and Usufructuary

(Sgd.) "ROMAN OZAETA

"Solicitor General"

No appeal has been taken against the foregoing order by any party.

From July 1, 1940, to December 31, 1941, the administratrix, respondent Mary McDonald Bachrach, made the
payments as ordered. According to respondents, the total amount paid amounted to P40,250. The monthly allowances
or advances due from January 1, 1942, to July 31, 1945, were not paid. The total amount is P32,500 or P21,500 for
Sophie M. Seifert and P10,750 for Elisa Elianoff. Payments were resumed from August, 1945, to January, 1947.
Petitioners have been demanding from respondent Mary McDonald Bachrach the payment of the monthly allowances
from January 1, 1942, to July 31, 1945, but respondent refused to pay. As alleged in her memorandum, the executrix
"decided to stop the payment", among several reasons, in view of the "inconsiderate, unappreciated and unkind
attitude" of petitioners, the increasing burden on Mrs. Bachrachs usufruct, and improbability of reimbursement to the
estate of the payments and of the return to the executrix of the usufructuary value of said allowances.

On February 18, 1947, petitioners filed with the lower court a petition for the issuance of a writ of execution ordering,
on the authority of the order of October 2, 1940, the administratrix to pay the allowances for February, 1947, and
those in arrears for the period comprising January 1, 1942, to July 31, 1945, and that in case the administratrix
should fail to pay the above amounts within 24 hours after receipt of notice, the Hongkong and China Banking
Corporation be ordered to deliver to attorneys for petitioners the total sum of P33,000, to be withdrawn from the
funds that the administratrix has on deposit in said bank in the name of the estate of E. M. Bachrach.

The petition was denied on February 27, 1947. On March 4, 1947, petitioners filed a motion for the reconsideration of
said order. On March 14, 1947, the motion for reconsideration was denied. Not satisfied with the orders of February
27, and March 14, 1947, of the lower court, petitioners filed with us the petition in this case.

For a proper understanding of the controversy we quote hereunder the text of the will of E. M.
Bachrach:jgc:chanrobles.com.ph

"I, E. M. Bachrach, a naturalized American citizen from the State of New York and resident of the City of Manila,
Philippine Islands, being of sound and disposing mind and memory and not acting under duress, menace, fraud or
undue influence of whatever nature, do hereby make, publish and declare the following to be my Last Will and
Testament, to-wit:jgc:chanrobles.com.ph

"First: I hereby declare that I have no child or children, grandchild or grandchildren.

"Second: My failure to make any provision in this Will for my brothers is intentional.

"Third: I hereby revoke and cancel any and all Wills by me heretofore made.

"Fourth: I hereby bind, obligate, and instruct my executors or administrators to make and pay the following bequests,
legacies or gifts, to-wit:jgc:chanrobles.com.ph

"(a) To Mary McDonald Bachrach, my beloved wife, I give one-half () of the proceeds of the house known as "Casa
Blanca," my residence at 105 Manga Avenue, Sta. Mesa, Manila, and of the rights to the lease on the parcel of land
wherein said house is built. As all the furniture, fixtures and silverware contained in the house were bought by my
beloved wife Mary McDonald Bachrach out of her own personal funds, and furniture, fixtures and silverware, being her
own property, I hereby order that the same be returned to her and disposed of by her as she may wish and for her
own benefit.

"(b) To Mary McDonald Bachrach, my beloved wife, I give an allowance of five hundred pesos (P500) each month as
living expenses.

"(c) To Mina Levine, daughter of Hyman Levine, the sum of ten thousand pesos (P10,000) to be paid to her upon my
death.

"(d) To Hyman Levine, the sum of one thousand pesos (P1,000) for each year of service he has given me or the
Bachrach Motor Co., Inc., that is one thousand pesos (P1,000) for each year since January, 1917, when he entered
the employment of the Bachrach Motor Co., Inc.

"(e) To Martin Elianoff and his wife Luba Elianoff, the sum of Ten Thousand Pesos (P10,000) jointly.

"(f) To Afna Elianoff, daughter of Martin Elianoff, the sum of Ten Thousand Pesos (P10,000) which amount is to be
deposited in any bank her father may choose, and is to be used for her education and upon her becoming of age, she
may withdraw and use the remainder thereof if any, as she may deem fit.

"(g) To Temple Emil Congregation, the sum of ten thousand pesos(P10,000).

"(h) To Sofie Seifert, wife of John Seifert, now residing at San Francisco, California, the sum of ten thousand pesos
(P10,000).

"(i) To Ginda Scundin, married to Henoch Scundin, now residing at Kiev, Russia, the sum of ten thousand pesos
(P10,000).

"(j) To Lisa Elianoff, widow of Abraham Elianoff, now residing at Moscow, Russia, the sum of ten thousand pesos
(P10,000).

"Fifth: I hereby choose and appoint my beloved wife, Mary McDonald Bachrach, as my administratrix and executrix to
hold, keep, possess and invest all my remaining properties for the benefit and advantage of the estate.

"Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the
fruits and usufruct of the remainder of all my estate after payment of the legacies, bequests and gifts provided for
above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.

"Seventh: It is my express wish that the business of the Bachrach Motor Co., Inc., the controlling shares of which I
hold and own, shall not be dissolved, disposed of, or discontinued for a period of at least FIVE years after my death,
unless the company is conducted at a losing basis; and the payment of the bequests, legacies and gifts above
mentioned shall be made from my income and estate as shall least disturb or disrupt the business of the Bachrach
Motor Co., Inc., as a going concern;

"Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real
and otherwise, and all the fruits and usufruct thereof which during her life pertained to her, shall be divided as
follows:jgc:chanrobles.com.ph

"One-half (1/2) thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case she
fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall distribute it, share
and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the
Philippines or of the United States;

"One-half (1/2) thereof shall be divided, share and share alike by and between my legal heirs, to the exclusion of my
brothers.

"Before signing this Last Will and Testament, I hereby declare that I have read and understood each and every
provision hereof, and hereby publish and declare the same as my Last Will and Testament.

"Done in this City of Manila, this 3rd day of December, 1935.

(Sgd.) "E. M. BACHRACH"

The following facts can also be taken into consideration: (1) A report filed by respondent Mary McDonald Bachrach on
January 24, 1941, giving in detail a list of properties belonging to the heirs of E. M. Bachrach, shows a total value of
P1,069,494.34; (2) The administratrix has in her possession the sum of P351,016.91; (3) The administratrix has
made "all the transfers or is proceeding with the transfers in the name of the estate of E. M. Bachrach for the heirs of
the said E. M. Bachrach," of the properties whose total value according to the last project of partition is
P1,069,494.34; (4) Among the properties in the possession of the administratrix is the sum of P351,016.91 which has
already been adjudicated to, and belongs, although still pro indiviso, to the heirs of the deceased E. M. Bachrach, from
which, according to petitioners, the monthly allowances due to petitioners should be paid in accordance with the order
of October 2, 1940; (5) Petitioners allege that the monthly allowances due them shall not be taken from the one-half
of the properties amounting to P1,069,494.34 which is the share of the charitable hospitals, but from their respective
participations in said property; (6) The Solicitor General agreed to the payment of the monthly allowances as per his
conformity signed at the bottom of the petition of September 15, 1940; (7) Respondent Mary McDonald Bachrach has
made advance payments to charitable institutions amounting to P22,000 from the participation of the charitable
hospitals without prior authority from the probate court; (8) On May 27, 1947, the Solicitor General filed a
manifestation undoubtedly for the protection of one-half of each and every asset of the estate of the deceased E. M.
Bachrach, belonging to the charitable hospitals, in accordance with the eighth clause of the will; (9) On June 9, 1947,
petitioners answer by stating that their monthly allowances shall not be taken from the shares or participation
belonging to the charitable hospitals but from petitioners participation or interest in the other one-half of the estate of
E. M. Bachrach which belongs to the heirs of the deceased; (10) On June 11, 1947, the Solicitor General filed an
additional manifestation in which it expresses its satisfaction over the statement made by petitioners on June 9,
1947.

There is no question that the monthly allowances provided in the order of October 2, 1940, were agreed upon by all
the parties for the maintenance of the four sisters of the deceased E. M. Bachrach, including herein petitioners. In the
order of February 27, 1947, Judge Conrado Barrios found that the heirs-petitioners Sophie M. Seifert and Elisa Elianoff
"are in dire need of funds for support."cralaw virtua1aw library

Several reasons are advanced by respondents in their opposition to the compliance with and execution of the order of
Judge Abeto dated October 2, 1940. We shall pass upon the important ones.

They allege that the conformity given by Mary McDonald Bachrach to the petition of September 16, 1940, as well as
the payments made by her of the monthly allowances under the order of October 2, 1940, "was an act of pure
liberality on her part and, therefore, could not be construed as giving rise to any obligatory relations between said
respondent executrix and the parties receiving said monthly allowances." The allegation is unacceptable. Conformity is
consent. According to a universal law, recognized in our Civil Code, consent is the source of obligations. That
respondent has given her conformity as an act "of pure liberality on her part" does not change the nature of the legal
effect of the consent given. The commitment she made with her conformity cannot be dismissed upon the ground that
it was given as "pure liberality" or for any other motive. Provided the consent was freely given, and regardless of the
motive behind the act, it gives rise to all proper legal effects. The conformity or agreement of all the parties to the
petition of September 16, 1940, gives it the nature of a contract. The contracting parties are bound to respect and to
abide by the commitments in said contract. The contract cannot be lightly dismissed. Respondents allegation that
Mary McDonald Bachrach had given her conformity without any consideration, is belied by her own allegation to the
effect that she gave said conformity as "an act of pure liberality on her part." Pure liberality is a consideration
recognized by the Civil Code. No other consideration is entertained in donations. The contract in this case has the
added force and solemnity of having been approved by the order of Judge Abeto of October 2, 1940. The contract has
been elevated to the category of a judgment. Its enforceability depends not only on the good faith of the parties but
on a legal and executory order issued by a competent court. While respondent Mary M. Bachrach cannot ignore her
plighted word, she has absolutely no right to consider the order of October 2, 1940, as a mere scrap of paper.
Otherwise, if their orders could be simply ignored, challenged or taken with scorn, there is no use for the existence of
courts.

Respondents alleged that "there is no provision in the will of the deceased E. M. Bachrach or in any statute requiring"
the payment of the monthly allowances provided in the order of October 2, 1940. But is there any prohibition for the
parties to agree in the payment of said monthly allowances? Was there any reason for the lower court to withhold its
approval to the agreement? The allegation seems to imply an argument based on the denial of the basic right of the
parties to enter into any kind of agreement neither forbidden by law nor against public morals.

The respondents alleged that the order of October 2, 1940, "was not intended to be a judicial mandate but merely an
authority for the respondent Mary McDonald Bachrach to do certain acts which she could not perform under the law or
under the provisions of the will of the deceased E. M. Bachrach without judicial authority." The allegation finds no
support in the order wherein Mary McDonald Bachrach is "authorized and instructed forthwith to pay" the monthly
allowances in question. Instructed means commanded. The inclusion of the last word negatives respondents
allegation. Mary McDonald Bachrach did not appeal against the order. She cannot now deny validity to the command
involved in the word "instructed." Besides, an "order", the title of the document, cannot be anything other than a
mandate, compulsory by nature.

Impairment of her usufruct is also alleged by the administratrix. How can she now complain of the alleged impairment
after alleging that she gave her conformity to the agreement, the basis of the order of October 2, 1940, as "an act of
pure liberality on her part?" Was she not the owner of her usufruct? Could she not give away her usufruct or any part
of it in favor of any person? If she disposed of a portion of said usufruct for the benefit of the sisters of her deceased
husband, without being subject to compulsion, or fraud, or mistake, but freely and conscientiously, there is no reason
for her to complain now. When she gave her conformity to the petition upon which the order of October 2, 1940, was
issued, she did it undoubtedly in the same spirit of charity with which her deceased husband, E. M. Bachrach, had
written his will. She deserves commendation for the beauty of her act in seconding the attitude of helpfulness of her
husband towards the petitioners. Charity is the choicest flower of the human spirit. While the late E. M. Bachrach and
his widow were concerned in helping charitable hospitals, they did not forget the needy sisters of the deceased, as
charity must start at home. We are not willing to help respondent withdraw now what she has given to petitioners
voluntarily and with noble spirit of liberality.

Because petitioners perfected an appeal against the order of the lower court granting the administratrix the authority
prayed for in her petition of February 19, 1947, to sell "the portion of the estate destined for charity," respondents
complain that petitioners have improperly and against the principles of orderly procedure, split the order of October 2,
1940, and simultaneously perfected an ordinary appeal from a part of the order of February 27, 1947, and filed the
present petition for a writ of mandamus in connection with the other part. The complaint is groundless. The present
petition refers to the execution of the order of October 2, 1940, while the appeal in question has been filed against the
order of February 27, 1947, granting the executrixs petition dated February 19, 1947, the basic pleading in the
record on appeal of March 31, 1947.

The last important argument of respondents is that no execution can validly be issued in connection with the order of
October 2, 1940, because of the moratorium provided in Executive Order Nos. 25 and 32, which is still in full force
and effect. The allegation cannot be entertained. The monthly allowances provided in the order of October 2, 1940,
are not among the money obligations for which a moratorium has been decreed. The allowances in question are
advances of an inheritance. They have been paid and are to be paid to petitioners as advances of the respective
shares in the estate of their deceased brother E. M. Bachrach. They are not debts. The moratorium refers to debts. It
is enough to look at the title of the executive orders in question.

Section 1 of Rule 39 provides:jgc:chanrobles.com.ph

"Execution as of right. Execution shall issue upon a final judgment or order upon the expiration of the time to
appeal when no appeal has been perfected."cralaw virtua1aw library

The provision is mandatory. There is no question that the order of October 2, 1940, has become final. Upon the facts
in this case and the law applicable thereto, it is the ministerial duty of the lower court to order the execution of
October 2, 1940. Failure to comply with said ministerial duty is a proper case for mandamus.

For all the foregoing, we grant the petition, and the respondent lower court is ordered to proceed with the execution
of its order of October 2, 1940, and to issue the proper writs.

Paras, Bengzon and Tuason, JJ., concur.
Separate Opinions


FERIA, J.:


I concur in the result.

BRIONES, M., conforme:chanrob1es virtual 1aw library

Es incuestionable el derecho de las peticionarias a los adelantos devengados y acumulados durante la guerra, pero no
cobrados a causa de la misma. Habiendose autorizado y ordenado el pago de dichos adelantos en virtud de auto
judicial de fecha 2 de Octubre, 1940, previa conformidad expresa de la administradora recurrida, todos los beneficios
y derechos derivados del mismo a favor de las peticionarias son validos y efectivos, por lo menos hasta que dicho
auto se revoque o modifique mediante procedimientos apropiados al efecto. No hay nada en autos que demuestre que
ese auto haya dejado alguna vez de estar en vigor. Consta, por el contrario, que cuando despues de la liberacion de
Filipinas de la ocupacion japonesa las peticionarias trataron de cobrar lo que se les debia en virtud del referido auto,
este tenia plena fuerza y efectividad.

Asi que sin necesidad de discutir si el auto en cuestion ha creado un estado juridico firme e irrevocable, o se halla en
todo tiempo sujeto al control del Juzgado, susceptible de revocacion, alteracion o modificacion de acuerdo con las
circunstancias y condiciones variables de la testamentaria, resulta evidente que no habiendose revocado o modificado
la orden, la misma debe hacerse efectiva con efecto retroactivo. Lo contrario seria una mala practica procesal. El buen
orden de los tramites y procedimientos judiciales exige que las ordenes validas y existentes se hagan efectivas.

Carece de importancia el que esto se llame orden de ejecucion, o lo que sea. Lo importante es que el Juzgado de
cumplimiento a la orden; y si no lo hace, se le puede compeler mediante mandamus.

En el presente caso es posible que la administradora y usufructuaria tenga derecho a pedir que se le releve o dispense
de los efectos de la orden de 2 de Octubre, 1940, si tuviere buenos fundamentos para ello; pero no solo no lo ha
pedido formal y seriamente, de acuerdo con la regla y practica procesal pertinente, sino que, aunque lo hiciera,
dudamos mucho que pueda prosperar el pedimento, constando, como consta, que la herencia yacente no solo no ha
sufrido una dislocacion irremediable, sino que cuenta con fondos montantes a 351 mil pesos muchisimo mas que
suficientes para sufragar los adelantos en cuestion, sin detrimento del usufructo de la recurrida.

Ademas, si el Estado ya ha recibido y esta recibiendo sustanciales anticipos de la mitad que le corresponde en la
herencia por que las peticionarias, que son hermanas del testador, no han de tener, por lo menos, el mismo
derecho?

Voto, por tanto, en favor de la concesion del recurso.

PABLO, M., disidente:chanrob1es virtual 1aw library

Disiento. En mi humilde opinion no procede el recurso de mandamus en el caso presente. La apelacion es el remedio
adecuado para revisar la orden del Hon. Juez Barrios de 27 de Febrero de 1947 que desestimo la mocion de las
recurrentes de 18 de Febrero del mismo ao. La mocion de reconsideracion esta bien denegada.

La orden de 2 de Octubre de 1940 que concede pension a las recurrentes (monthly allowance) no es irrevocable, que
con el simple transcurso del tiempo ya es deber ministerial del Juzgado el cumplir o mandar cumplir por medio del
Sheriff sus disposiciones. La naturaleza de la obligacion de dar pension esta sujeta en algunos casos a las
fluctuaciones de la capacidad economica del obligado; en otros, en la necesidad del pensionista. Uno que presta
pension de P200 mensuales, por ejemplo, que esta recibiendo en sus negocios un ingreso liquido de P2,000 no esta
obligado a continuar concediendo la misma cantidad si, por las vicisitudes de una guerra, no obtiene ganancias sino
que queda arruinado. Un nio recien nacido no ha de recibir una pension igual a la que recibiria si estuviese
estudiando medicina. Aunque existiera una sentencia final sobre la prestacion de una pension, su cuantia no es
irrevocable, ni firme: esta sujeta a varias circunstancias de cada caso particular y es el Juzgado el que tiene la
facultad de de-terminar su aumento o diminucion, su pago completo o suspension, despues de oir a las partes
interesadas. "Se concede considerable amplitud al juzgado de primera instancia para modificar o revocar sus propias
ordenes, en tanto en cuanto esten pendientes las actuaciones en el mismo juzgado y se presenten en tiempo
oportuno solicitudes o mociones para tales modificaciones por las partes interesadas." (Oas contra Javillo y otros, 54
Jur. Fil., 643.)

Es absurda la teoria de que la orden de 2 de Octubre de 1940 dictada en la Testamentaria de E. M. Bachrach es
ejecutoria y es deber ministerial del Juzgado el hacer cumplir sus disposiciones. El articulo 1. de la Regla 39 no es
aplicable al caso presente; no es aplicable a las actuaciones sobre la administracion y distribucion de los bienes de
difuntos; es solamente aplicable a los asuntos ordinarios.

Y si es final esa orden de 2 de Octubre de 1940, como si fuera una sentencia dictada en un asunto ordinario, entonces
seria mas improcedente an el mandamus. Desde la fecha de su promulgacion hasta el 27 de Febrero de 1947 en que
se dicto la orden, cuya revocacion piden las recurrentes, han transcurrido ya seis aos, cuatro meses y veinticinco
dias. Despues del transcurso de cinco aos ya no se puede pedir por medio de una simple mocion la ejecucucion de
una sentencia. (Articulo 6, Regla 39.) .

Si es erronea o no la orden de 27 de Febrero de 1947, el error debe corregirse en una apelacion y no en un recurso
especial de mandamus. Solamente se puede hacer uso de tal remedio cuando no existe en el curso ordinario de los
procedimientos un medio facil, adecuado y expedito como la apelacion. (Herrera contra Barretto, 25 Jur. Fil., 253;
Gala contra Cui y Rodriguez, 25 Jur. Fil., 540; Provincia de Tarlac contra Gale, 26 Jur. Fil., 356: Napa contra
Weissenhagen, 29 Jur. Fil., 188; Gobierno de las Islas Filipinas contra Juez de Primera Instancia de Iloilo y Bantillo, 34
Jur. Fil., 166; Ello contra Juez de Primera Instancia de Antique, 49 Jur. Fil., 160; Santos contra Juzgado de Primera
Instancia de Cavite, 49 Jur. Fil., 416; Regala contra Juez del Juzgado de Primera Instancia de Bataan, 77 Phil., 684;
Ong Sit contra Piccio, 78 Phil., 785.)

Debe denegarse la solicitud.

HILADO, J., dissenting:chanrob1es virtual 1aw library

I am constrained to dissent from the foregoing opinion of the majority. In my view of the case, its final analysis boils
down to the pivotal question of whether the petition dated September 16, 1940, filed by the instant petitioners
(Sophie M. Seifert and Elisa Elianoff) and Ginda M. Skundina and Annie Bachrach, bearing the conformity of the
instant respondent Mary McDonald Bachrach as "administratrix and usufructuary", as well as that of the Solicitor
General, and transcribed on pages 3-5 of the majority decision, became so binding upon the probate court after it
granted said petition by its order of October 2, 1940, inserted on pages 1-3 of the same decision, that it became the
ministerial duty of said court to subject the estate under administration absolutely and unqualifiedly to the payment of
each and every monthly allowance specified in the said petition, regardless of the vicissitudes which the estate might
go through before its final settlement and distribution after payment of "the debts, funeral charges, and expenses of
administration, the allowances to the widow, and inheritance tax", or any of these concepts, as provided in Rule 91,
section 1. The majority opinion enumerates these so-called allowances, quoting from the lower courts order of
October 2, 1940, as follows:chanrob1es virtual 1aw library

Sophie M. Seifert P500.00 monthly;

Ginda M. Skundina 250.00 monthly;

Elisa Elianoff 250.00 monthly;

Annie Bachrach Levine 250.00 monthly.

beginning July 1, 1940, through the war years, to the present, plus an additional P3,000 to Sophie M. Seifert "who is
in poor health."

Paragraph VI of the petition alleges that of the above amounts the administratrix, who is the same widow of the
deceased, did not pay petitioners the monthly allowances from January 1, 1942, to July 31, 1945, or a total of
P21,500 for petitioner Sophie M. Seifert, and P10,750 for petitioner Elisa Elianoff. Roughly, this would comprise the
war years when the business of the aforesaid estate was laid prostrate and its properties suffered heavy losses, which
facts and circumstances must have been taken into consideration by the respondent judge Hon. Conrado Barrios,
when by his order of February 27, 1947, he denied petitioners petition filed on February 19, 1947, excepting that part
relating to the "allowances" of petitioners Sophie M. Seifert and Elisa Elianoff for the months of February and March,
1947, which said judge ordered to be paid "out of the available funds of the estate." These so-called allowances
cannot be, in my opinion, other than advancements on account of petitioners hereditary portions. They are not real
allowances in the sense of something which they have a right to receive from the estate pending actual delivery of
their hereditary portions. There is no law that would give them that right, in view of the fact that they are not the
widow nor the minor or incapacitated children, or members of the family, of the deceased.

Under section 684 of the Code of Civil Procedure, those entitled to such allowances were the widow and minor children
of the deceased. In section 753 of the same Code these are referred to as "the family of the deceased." And under
Rule 84, section 3, of the present Rules of Court those entitled to such allowances are "the widow and minor or
incapacitated children" of the deceased. But even their right to receive the allowance is there provided to be made
"under the direction of the court," which implies the continuing power of the probate court to control at least the
amount of the allowances, according to the varied and unpredictable circumstances under which the estate may pass
from time to time during the judicial administration thereof. The last cited provision ends, in referring to the
allowances, with the important clause: "such allowances as are provided by law." And article 147 of the Civil Code
ordains that the amount allowed for support, in the cases referred to in article 146, shall be reduced or increased
proportionately according to the increase or reduction of the necessities of the recipient and the means of the person
obliged to give it. Even if petitioners had been included in the cases referred to in article 146 (which are those
mentioned in article 143) of the Code which would have given them a legal right to support it would seem clear,
even in that hypothesis, that the probate court, in granting the aforesaid petition of September 16, 1940, should not
be deemed to have given up its legal authority and duty to exercise a continuing control over the amount of the
allowance, as contemplated in said article 147 and as held in Gorayeb v. Hashim, 47 Phil., 87, 88, hereinafter more
particularly discussed. Neither could said court have validly renounced such a vital part of its jurisdiction.

The pertinent legal provisions to which reference is thus made are found in articles 143, 146, and 147 of the Civil
Code. Article 147 expressly provides that the amount allowed for support (allowance) in the cases to which article 146
refers shall be reduced or increased proportionately according to the increase or reduction of the necessities of the
recipient and the means of the person obliged to give it. And it was upon such provision that this Court held in
Gorayeb v. Hashim, supra, as follows:jgc:chanrobles.com.ph

"With reference to the amount of the maintenance allowance awarded by the court below, it may be observed that
inasmuch as in respect to modifications, a judgment rendered in a suit for separate maintenance is not regarded as
final and may be modified at any time for sufficient reasons upon application to the court having original jurisdiction,
the appellate courts will, as a rule, not interfere with the findings and conclusions of the lower courts in regard to such
allowances. Upon the evidence before us, we cannot say that in this case the allowance is so excessive as to call for
our interference."cralaw virtua1aw library

Of course, while the case just cited was concerned with the allowance of a wife, the governing legal principle is the
same in other cases of support comprised within the same codal articles providing for a wifes support.

If even in cases of allowance or support provided for by law the competent court retains a continuing power in the
proceedings or the case involving the same, to control and direct the giving thereof as regards its amount, and if "in
respect to modifications, a judgment rendered in a suit for separate maintenance (the rule should be the same in an
estate proceeding because the reason therefor is the same in both cases) is not regarded as final and may be
modified at any time for sufficient reasons upon application to the court having original jurisdiction", why should the
probate court in the instant case be denied that power or control when the allowances claimed are not even provided
for by law, nor by will, nor by contract?

Title VI of Book I of the Civil Code does not contain any provision for such an allowance to parties situated as are
petitioners herein. The will of the deceased E. M. Bachrach does not contain any provision therefor.

The majority opinion, however, holds that "the conformity or agreement of all the parties to the petition of September
16, 1940, gives it the nature of a contract." I cannot subscribe to this holding. The conformity of respondent to that
petition was given in her double capacity of "administratrix and usufructuary." As administratrix, she was a mere
agent of the probate court and was not acting in her personal capacity. And while as usufructuary she was acting in
such personal capacity, in the very nature of things, the fundamental inquiry which now demands our consideration is
whether the probate courts granting of the aforesaid petition made it so binding upon said court that it has no other
alternative but to order or authorize specific payment of all the monthly allowances mentioned in the petition that
the court by granting said petition lost all control over the matter and became thenceforward completely powerless to
order a reduction of the so-called allowances even though facts and circumstances subsequently supervening advised
such reduction in the courts judgment and discretion. Such a proposition amounts to nothingless than to assert that
the probate court was by the will of the parties divested of a very substantial part of its jurisdiction and control over
the estate. It is said that "the conformity or agreement of all the parties to the petition of September 16, 1940, gives
it the nature of a contract." If we were to consider such an alleged contract to have been entered into by respondent,
as judicial administratrix, it could not be her personal contract if at all, it would be the contract of the probate
court, of which she was a mere agent as such administratrix, and which granted the petition; but this is entirely
unthinkable. A probate court, or any other court of justice for that matter, cannot, and never does, enter into any
contract or agreement regarding its jurisdiction, much less to barter it away wholly or partially. And even if it should
be said that respondent Mary McDonald Bachrach entered into that agreement or contract also as a usufructuary
although I do not admit even this it is obvious that her will, as thus expressed therein, was and is subordinated to
the superior will of the probate court. In other words, the fact that she, as usufructuary, may agree that she be
authorized by the court to pay the so-called allowances, if the probate court, which is the guardian and keeper of the
estate of the deceased, should at any time consider such burden as too onerous upon the estate for the reasons
already stated above or any other than the court might have had, it is the will of said court that must prevail and not
that of the usufructuary. Such a contingency concretely happened with respect to the "allowances" corresponding to
the war years, which the court evidently considered unjustifiable due to the "reduction . . . of the means: of the estate
by reason of the war; and the court in effect ordered a reduction of the "allowances" in general by refusing to order
payment of those corresponding to said years.

Under clause eight of the will of the deceased (pp. 8-9, majority opinion) the testators legal heirs will have no right to
receive the half of his estate, personal, real and otherwise, bequeathed to them, until his widows death "upon the
death of my beloved wife," is the testators textual phrase. During the judicial administration of the estate the probate
court had the duty to give preferential consideration to the payment of the deceaseds debts and obligations, aside
from the administration expenses. The probate court must have considered that during that period the estate might
suffer losses which would diminish its assets, as it actually did during the late war when the business and properties of
the estate suffered heavy losses and were subjected to a terrible financial frustration. Consequently, in the exercise of
its control over the disbursements to be made, among other things, by way of the so-called allowances to the present
petitioners, that court had to consider all these matters and even eventualities, and to act accordingly, not permitting
the widow and the legal heirs to deviate it from the course most in consonance with the will of the testator and the
law, in the courts best judgment and discretion. And I am persuaded that this is exactly what Judge Barrios did when
he denied authority for the payment of the so- called allowances corresponding to the war years. If we held the
probate court, and after the closing of the estate proceeding, the widow, absolutely bound to the payment of each and
all of the so- called monthly allowances to petitioners, regardless of losses in the meantime suffered by the estate,
until the widows death it may happen that upon the arrival of the time predetermined by the testator the demise of
his widow for his legal heirs to receive their portion in the estate, petitioners will have received, by way of
"allowances", more than the portion intended by the testator, to the damage and prejudice of other legal heirs who
have not given their conformity to what the majority opinion calls an "agreement" or a "contract" between petitioners
and the widow.

Furthermore, a sounder construction of the petition of September 16, 1940, would be that whatever may have been
agreed upon by the parties therein was without prejudice to the continuing control and power of the probate court
over the subject-matter thereof under the applicable provisions of the law and rules.

Even through petitioners are among the "legal heirs" mentioned by the testator in the 8th clause of his will, under said
clause they will not be entitled to take delivery of and receive their shares in the estate until the demise of the
decedents widow. So that the so- called allowances, or more accurately, advancements spoken of in the courts order
of October 2, 1940, were not granted as a matter of right.

Consequently, I am of the considered opinion that the respondent judge acted entirely within the powers of the
probate court that he was presiding in refusing to issue a writ of execution or otherwise to order payments, as prayed
for by petitions, and in entering its order of February 27, 1947. And, as in Gorayeb v. Hashim, supra, I believe we
should here apply the same rule that "the appellate courts will, as a rule, not interfere with the findings and
conclusions of the lower courts in regard to such allowances." it is submitted that the instant petition should be
denied.

MORAN, C.J. :chanrob1es virtual 1aw library

I concur in this opinion of Mr. Justice Hilado.

PADILLA, J.:


I concur in the foregoing dissent.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-123 December 12, 1945
JOSEFA FABIE, petitioner,
vs.
JOSE GUTIERREZ DAVID, Judge of First Instance of Manila, NGO BOO SOO and JUAN GREY,respondents.
Sancho Onocencio for petitioner.
Serverino B. Orlina for respondent Ngo Soo.
No appearance for other respondents.

OZAETA, J .:
The petitioner Josefa Fabie is the usufructuary of the income of certain houses located at 372-376 Santo Cristo, Binondo, and 950-956
Ongpin, Santa Cruz, Manila, under the ninth clause of the will of the deceased Rosario Fabie y Grey, which textually reads as follows:
NOVENO. Lego a mi ahijada menor de edad, Maria Josefa de la Paz Fabie, en usufructo vitalicio las rentas de las fincas
situadas en la Calle Santo Cristo Numeros 372 al 376 del Disrito de Binondo, de esta Ciudad de Manila, descrita en el
Certificado Original de Titulo No. 3824; y en la Calle Ongpin, Numeros 950 al 956 del Distrito de Santa Cruz, Manila descrita
en el Certificado Original de Titulo No. 5030, expedidos por el Registrador de Titulos de Manila, y prohibo enajene, hipoteque,
permute o transfiera de algun modo mientras que ella sea menor de edad. Nombro a Serafin Fabie Macario, mi primo por
linea paterna tutor de la persona y bienes de mi ahijada menor, Maria Josefa de la Paz Fabie.
The owner of Santo Cristo property abovementioned is the respondent Juan Grey, while those of the Ongpin property are other person
not concern herein. Previous to September 1944 litigation arose between Josefa Fabie as plaintiff and Juan Grey as defendant and the
owner of the Ongpin property as intervenors, involving the administration of the houses mentioned in clause 9 of the will above quoted
(civil case No. 1659 of the Court of First Instance of Manila). That suit was decided by the court on September 2, 1944, upon a
stipulation in writing submitted by the parties to and approved by the court. The pertinent portions of said stipulation read as follows:
(4) Heretofore, the rent of said properties have been collected at times by the respective owners of the properties, at other
times by the usufructuary, and lastly by the defendant Juan Grey as agent under awritten agreement dated March 31, 1942,
between the owners of both properties and the usufructuary.
(5) When the rents were collected by the owners, the net amounts thereof were duly paid to the usufructuary after the
expenses for real estate taxes, repairs and insurance premiums, including the documentary stamps, on the properties and the
expenses of collecting the rents had been deducted, and certain amount set aside as a reserve for contingent liabilities. When
the rents were collected by the usufructuary, she herself paid the expenses aforesaid. When the rents are collected by the
defendant Juan Grey under the agreement of March 31, 1942, the net amounts thereof were duly paid to the usufructuary,
after deducting and setting aside the items aforesaid, monthly, until the month of October 1943, when the usufructuary refused
to continue with the agreement of March 31, 1942.
x x x x x x x x x
II. The parties hereto jointly petition the Court to render judgment adopting the foregoing as finding of facts and disposing that:
(8) Beginning with the month of September 1944, the usufructuary shall collect all the rents of the both the Sto. Cristo and the
Ongpin properties.
(9) The usufructuary shall, at her own cost and expense, pay all the real estate taxes, special assessments, and insurance
premiums, including the documentary stamps, and make all the necessary repairs on each of the properties, promptly when
due or, in the case of repairs, when the necessary, giving immediate, written notice to the owner or owners of the property
concerned after making such payment or repairs. In case of default on the part of the usufructuary, the respective owners of
the properties shall have the right to make the necessary payment, including penalties and interest, if any, on the taxes and
special assessments, and the repairs and in that event the owner or owners shall entitled to collect all subsequent rents of the
property concerned until the amount paid by him or them and the expenses of collection are fully covered thereby, after which
the usufructuary shall again collect the rents in accordance herewith.
(10) The foregoing shall be in effect during the term of the usufruct and shall be binding on the successors and assigns of
each of the parties.
(11) Nothing herein shall be understood as affecting any right which the respective owners of the properties have or may have
as such and which is not specifically the subject of this stipulation.
In June 1945 Josefa Fabie commenced an action of unlawful detainer against the herein respondent Ngo Boo Soo (who says that his
correct name is Ngo Soo), alleging in her amended complaint that the defendant is occupying the premises located at 372-376 Santo
Cristo on a month-to month rental payable in advance not latter than the 5th of each month; that she is the administratrix and
usufructuary of said premises; "that the defendant offered to pay P300 monthly rent payable in advance not later than the 5th of every
month, beginning the month of April 1945, for the said of premises including the one door which said defendant, without plaintiff's
consent and contrary to their agreement, had subleased to another Chinese, but plaintiff refused, based on the fact that the herein
plaintiff very badly needs the said house to live in, as her house was burned by the Japanese on the occasion of the entry of the
American liberators in the City and which was located then at No. 38 Flores, Dominga, Pasay; that defendant was duly notified on
March 24 and April 14, 1945, to leave the said premises, but he refused"; and she prayed for judgment of eviction and for unpaid
rentals.
The defendant answered alleging that he was and since 1908 had been a tenant of the premises in question, which he was using and
had always used principally as a store and secondarily for living quarters; that he was renting it from its owner and administrator Juan
Grey; "that plaintiff is merely the usufructuary of the income therefrom, and by agreement between her and said owner, which is
embodied in a final judgment of the Court of First Instance of Manila, her only right as usufructuary of the income is to receive the whole
of such income; that she has no right or authority to eject tenants, such right being in the owner and administrator of the house, the
aforesaid Juan Grey, who has heretofore petitioned this Court for permission to intervene in this action; that plaintiff herein has never
had possession of said property; that defendant's lease contract with the owner of the house is for 5-year period, with renewal option
at the end of each period, and that his present lease due to expire on December 31, 1945 . . .; that on June 1, 1945, defendant made a
written offer to plaintiff to compromise and settle the question of the amount of rent to be paid by defendant . . . but said plaintiff rejected
the same for no valid reason whatever and instituted the present action; that the reason plaintiff desires to eject defendant from the
property is that she wishes to lease the same to other persons for a higher rent, ignoring the fact that as usufructuary of the income of
the property she has no right to lease the property; that the defendant has subleased no part of the house to any person whomsoever.
Juan Grey intervened in the unlawful detainer suit, alleging in his complaint in intervention that he is the sole and absolute owner of the
premises in question; that the plaintiff Josefa Fabie is the usufructuary of the income of said premises; by virtue of a contract between
him and the intervenor which will expire on December 31, 1945, with the option to renew it for another period of five years from and
after said date; that under the agreement between the intervenor and plaintiff Josefa Fabie in civil case No. 1659 of the Court of First
Instance of Manila, which was approved by the court and incorporated in its decision of September 2, 1944, the only right recognized in
favor of Josefa Fabie as usufructuary of the income of said premises is to receive the rents therefrom when due; and that as
usufructuary she has no right nor authority to administer the said premises nor to lease them nor to evict tenants, which right and
authority are vested in the intervenor as owner of the premises.
The municipal court (Judge Mariano Nable presiding) found that under paragraph 9 of the stipulation incorporated in the decision of the
Court First Instance of Manila in civil; case No. 1659, the plaintiff usufructuary is the administratrix of the premises in question, and that
the plaintiff had proved her cause. Judgment was accordingly rendered ordering the defendant Ngo Soo to vacate the premises and to
pay the rents at the rate of P137.50 a month beginning April 1, 1945. The complaint in intervention was dismissed.
Upon appeal to the Court of First Instance of Manila the latter (thru Judge Arsenio P. Dizon) dismissed the case for the foll owing
reason: "The main issue *** is not a mere question of possession but precisely who is entitled to administer the property subject matter
of this case and who should be the tenant, and the conditions of the lease. These issues were beyond the jurisdiction of the municipal
court. This being case, this Court, as appellate court, is likewise without jurisdiction to take cognizance of the present case." A motion
for reconsideration filed by the plaintiff was denied by Judge Jose Gutierrez David, who sustained the opinion of Judge
Dizon.lawphi1.net
The present original action was instituted in this Court by Josefa Fabie to annul the order of the dismissal and to require to the Court of
First Instance to try and decide the case on the merits. The petitioner further prays that the appeal of the intervenor Juan Grey be
declared out of time on the ground that he receive copy of the decision on August 3 but did not file his notice of appeal until August 25,
1945.
1. The first question to determine is whether the action instituted by the petitioner Josefa Fabie in the municipal court is a purely
possessory action and as such within the jurisdiction of said court, or an action founded on property right and therefore beyond the
jurisdiction of the municipal court. In other words, is it an action of unlawful detainer within the purview of section 1 of Rule 72, or an
action involving the title to or the respective interests of the parties in the property subject of the litigation?
Said section 1 of Rule 72 provides that "a landlord, vendor, vendee, or other person against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any such landlord, vendor vendee, or other person, may, at any time within one year
after such unlawful deprivation of withholding of possession, bring an action in the proper inferior court against the person or persons
unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession,
together with the damages and costs."
It is admitted by the parties that the petitioner Josefa Fabie is the usufructuary of the income of the property in question and that the
respondent Juan Grey is the owner thereof. It is likewise admitted that by virtue of a final judgment entered in civil case No. 1659 of the
Court of First Instance of Manila between the usufructuary and the owner, the former has the right to collect all the rents of said
property for herself with the obligation on her part to pay all the real estate taxes, special assessments, and insurance premiums, and
make all necessary repairs thereon, and in case default on her part the owner shall have the right to do all those things, in which event
he shall be entitled to collect all subsequent rents of the property concerned until the amount paid by him and the expenses of collection
are fully satisfied, after which the usufructuary shall again collect the rents. There is therefore no dispute as to the title to or the
respective interests of the parties in the property in question. The naked title to the property is to admittedly in the respondent Juan
Grey, but the right to all the rents thereof, with the obligation to pay the taxes and insurance premiums and make the necessary repairs,
is, also admittedly, vested in the usufructuary, the petitioner Josefa Fabie, during her lifetime. The only question between the plaintiff
and the intervenor is: Who has the right to manage or administer the property to select the tenant and to fix the amount of the rent?
Whoever has that right has the right to the control and possession of the property in question, regardless of the title thereto. Therefore,
the action is purely possessory and not one in any way involving the title to the property. Indeed, the averments and the prayer of the
complaint filed in the municipal court so indicate, and as a matter of fact the defendant Ngo Soo does not pretend to be the owner of the
property, but on the contrary admits to be a mere tenant thereof. We have repeatedly held that in determining whether an action of this
kind is within the original jurisdiction of the municipal court or of the Court of First Instance, the averments of the complaint and the
character of the relief sought are primarily to be consulted; that the defendant in such an action cannot defeat the jurisdiction of the
justice of the peace or municipal court by setting up title in himself; and that the factor which defeats the jurisdiction of said court is the
necessity to adjudicate the question of title. (Mediranvs. Villanueva, 37 Phil., 752, 759; Medel vs. Militante, 41 Phil., 526, 529;
Sevilla vs. Tolentino, 51 Phil., 333; Supia and Batioco vs. Quintero and Ayala, 59 Phil., 312; Lizo vs. Carandang, G.R. No. 47833, 2 Off.
Gaz., 302; Aguilarvs. Cabrera and Flameo, G.R. No. 49129.)
The Court of First Instance was evidently confused and led to misconstrue the real issue by the complaint in intervention of Juan Grey,
who, allying himself with the defendant Ngo Soo, claimed that he is the administrator of the property with the right to select the tenant
and dictate the conditions of the lease, thereby implying that it was he and not the plaintiff Josefa Fabie who had the right to bring the
action and oust the tenant if necessary. For the guidance of that court and to obviate such confusion in its disposal of the case on the
merits, we deem it necessary and proper to construe the judgment entered by the Court of First Instance of Manila in civil case No.
1659, entitled "Josefa Fabie and Jose Carandang, plaintiffs, vs. Juan Grey, defendant, and Nieves G. Vda. de Grey, et al., intervenors-
defendants" which judgment was pleaded by the herein respondents Juan Grey and Ngo Soo in the municipal court. According the
decision, copy of which was submitted to this Court as Appendix F of the petition and as Annex 1 of the answer, there was an
agreement, dated March 31, 1942, between the usufructuary Josefa Fabie and the owner Juan Grey whereby the latter as
agent collected the rents of the property in question and delivered the same to the usufructuary after deducting the expenses for taxes,
repairs, insurance premiums and the expenses of collection; that in the month of October 1943 the usufructuary refused to continue
with the said agreement of March 31, 1942, and thereafter the said case arose between the parties, which by stipulation approved by
the court was settled among them in the following manner: Beginning with the month of September 1944 the usufructuary shall collect
all the rents of the property in question; shall, at her own cost and expense, pay all the real estate taxes, special assessments, and
insurance premiums, including the documentary stamps, and make all the necessary repairs on the property; and in case of default on
her part the owner shall the right to do any or all of those things, in which event he shall be entitled to collect all subsequent rents until
the amounts paid by him are fully satisfied, after which the usufructuary shall again collect the rents. It was further stipulated by the
parties and decreed by the court that "the foregoing shall be in effect during the term of the usufruct and shall be binding on the
successors and assigns of each of the parties."
Construing said judgment in the light of the ninth clause of the will of the deceased Rosario Fabie y Grey, which was quoted in the
decision and by which Josefa Fabie was made by the usufructuary during her lifetime of the income of the property in question, we find
that the said usufructuary has the right to administer the property in question. All the acts of administration to collect the rents for
herself, and to conserve the property by making all necessary repairs and paying all the taxes, special assessments, and insurance
premiums thereon were by said judgment vested in the usufructuary. The pretension of the respondent Juan Grey that he is the
administrator of the property with the right to choose the tenants and to dictate the conditions of the lease is contrary to both the letter
and the spirit of the said clause of the will, the stipulation of the parties, and the judgment of the court. He cannot manage or administer
the property after all the acts of management and administration have been vested by the court, with his consent, in the usufructuary.
He admitted that before said judgment he had been collecting the rents as agent of the usufructuary under an agreement with the latter.
What legal justification or valid excuse could he have to claim the right to choose the tenant and fix the amount of the rent when under
the will, the stipulation of the parties, and the final judgment of the court it is not he but the usufructuary who is entitled to said rents? As
long as the property is properly conserved and insured he can have no cause for complaint, and his right in that regard is fully protected
by the terms of the stipulation and the judgment of the court above mentioned. To permit him to arrogate to himself the privi lege to
choose the tenant, to dictate the conditions of the lease, and to sue when the lessee fails to comply therewith, would be to place the
usufructuary entirely at his mercy. It would place her in the absurd situation of having a certain indisputable right without the power to
protect, enforce, and fully enjoy it.
One more detail needs clarification. In her complaint for desahucio Josefa Fabie alleges that she needs the premises in question to live
in, as her former residence was burned. Has she the right under the will and the judgment in question to occupy said premises herself?
We think that, as a corollary to her right to all the rent, to choose the tenant, and to fix the amount of the rent, she necessarily has the
right to choose herself as the tenant thereof, if she wishes to; and, as she fulfills her obligation to pay the taxes and insure and
conserve the property properly, the owner has no legitimate cause to complain. As Judge Nable of the municipal court said in his
decision, "the pretension that the plaintiff, being a mere usufructuary of the rents, cannot occupy the property, is illogical if it be taken
into account that that could not have been the intention of the testatrix."
We find that upon the pleadings, the undisputed facts, and the law the action instituted in the municipal court by the petitioner Josefa
Fabie against the respondent Ngo Soo is one of unlawful detainer, within the original jurisdiction of said court, and that therefore Judges
Dizon and Gutierrez David of the Court of First Instance erred in holding otherwise and in quashing the case upon appeal.
2. The next question to determine is the propriety of the remedy availed of by the petitioner in this Court. Judging from the allegations
and the prayer of the petition, it is in the nature of certiorari and mandamus, to annul the order of dismissal and to require the Court of
First Instance to try and decide the appeal on the merits. Under section 3 of Rule 67, when any tribunal unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, and there is no other plain, speedy, and
adequate remedy in the ordinary course of law, it may be compelled by mandamus to do the act required to be done to protect the
rights of the petitioner. If, as we find, the case before the respondent judge is one of unlawful detainer, the law specifically requires him
to hear and decide that case on the merits, and his refusal to do so would constitute an unlawful neglect in the performance of that duty
within section 3 of Rule 67. Taking into consideration that the law requires that an unlawful detainer case be promptly decided (sections
5 and 8, Rule 72),it is evident that an appeal from the order of dismissal would not be a speedy and adequate remedy; and under the
authority of Cecilio vs. Belmonte (48 Phil., 243, 255), and Aguilar vs. Cabrera and Flameo (G.R. No. 49129), we hold
that mandamuslies in this case.
3. The contention of the petitioner that the appeal of the intervenor Juan Grey was filed out of time is not well founded. Although said
respondent received copy of the decision of the municipal court on August 3, 1945, according to the petitioner (on August 6, 1945,
according to the said respondent), it appears from the sworn answer of the respondent Ngo Soo in this case that on August 8 he filed a
motion for reconsideration, which was granted in part on August 18. Thus, if the judgment was modified on August 18, the time for the
intervenor Juan Grey to appeal therefrom did not run until he was notified of said judgment as modified, and since he filed his notice of
appeal on August 23, it would appear that his appeal was filed on time. However, we observe in this connection that said appeal of the
intervenor Juan Grey, who chose not to answer the petition herein, would be academic in view of the conclusions we have reached
above that the rights between him as owner and Josefa Fabie as usufructuary of the property in question have been definitely settled by
final judgment in civil case No. 1659 of the Court of First Instance of Manila in the sense that the usufructuary has the right to
administer and possess the property in question, subject to certain specified obligations on her part.
The orders of dismissal of the respondent Court of First Instance, dated September 22 and October 31, 1945, in the desahucio case
(No. 71149) are set aside that court is directed to try and decide the said case on the merits; with the costs hereof against the
respondent Ngo Soo.
Moran, C.J., Paras, Jaranilla, Feria, De Joya, Pablo, Perfecto, Bengzon, and Briones, JJ., concur.



Separate Opinions

HILADO, J ., concurring:
I concur on the sole ground that, in my opinion, the amended complaint, dated July 12, 1945, filed by plaintiff in the Municipal Court of
Manila, expressly alleges an agreement between her and defendant Ngo Boo Soo regarding the leasing of the premises in question,
and that said amended complaint contains further allegations which, together with the allegations of said agreement, under a liberal
construction (Rule 1, section 2, Rules of the Court), would constitute a prima facie showing that the case is one of unlawful detainer. Of
course, this is only said in view of the allegations of the amended complaint, without prejudice to the evidence which the parties may
adduce at the trial in the merits, in view of which the court will judge whether or not, in point of fact, the case is one of unlawful detainer