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GR NO.

L-5597, May 31, 1956

ROMAN OZAETA, PETITIONER & APPELLEE ROSE GONZALES, ET ALS., CO-
PETITIONERS & APPELLEES, V.S. MARIA CUARTERO, ET ALS., OPPOSITORS &
APPELLEES SEBASTIAN C. PALANCA, MARCIANA PALANCA & ANGEL C.
PALANCA, OPPOSITORS & APPELLANTS.

DECISION

REYES, A., J.:

This is an appeal from a decision of the Court of First Instance of Manila, allowing the probate of a will
and appointing the petitioner-appellee Roman Ozaeta executor.

The questioned will purports to be that of Carlos “Palanca Tanguinlay, a resident of Manila who died in
said city on September 2, 1950, leaving a large estate and three sets of heirs.

Born in China of Chinese parents, Palanca came to the Philippines in 1884 and resided therein the rest
of his life. He died a Filipino citizen. In 1894 he married Cesarea Victorina Gano y Torres, with whom he
begot three children named Marciana, Angel, and Sebastian. Cesarea died in 1907, and one year
thereafter, Palanca lived unmarried with Rosa Gonzales and came to have eight children with her.
While living with Rosa, Palanca also sustained relations with another woman, Maria Cuartero, and by
her he came to have six children.

Realizing in his old age and failing health that life’s end was fast approaching, Palanca made up Ms
mind to legalize his relations with Rosa Gonzales and give their children a good name. And to put
himself right with all his children, legitimate and illegitimate, he also decided to make a will. And so it
was that on April 12, 1945, in a marriage ceremony performed by a Judge of the Court of First Instance
of Manila, Hon. Mamorto Roxas, Palanca took Rosa Gonzales as his wedded wife, and not long
thereafter he engaged the services of a prominent lawyer, Atty. Ramon Diokno, for the drafting of the
will. After conferring several times with Palanca as to what the will should contain, Diokno handed him.
a draft. A day or two later, Palanca—who was then living temporarily in the house of petitioner Roman
Ozaeta, his own house having been burned in the battle for tie liberation of Manila— sent for his former
employee, Adolfo Gruet, and had him put the draft of will in clean form, telling him to keep the matter
confidential.

Typewriting the will, Gruet made one original and two copies and delivered them all to Palanca
together with the draft. The will is in Spanish and consists of sis typewritten pages correlatively
numbered in letters. Each page is numbered at the top except the first, which is numbered at the
bottom.

As previously agreed, in the morning of May 19, 1945, Palanca, accompanied by Adolfo Gruet, went to
the office of Atty. Ramon Diokno at 114 Sail Rafael St., Manila for the signing of the will. There they
wore joined by Segundo Gonzales, who had been previously requested by Palanca to be one of the
witnesses. Before the signing began, Atty. Rom on Diokno conferred in his private room with Palanca,
reading and explaining to him the entire will. The conference over, Palanca and Atty. Ramon Diokno
came out of the room, followed by the latter’s son Jose Diokno, who was to be one of the attesting
witnesses to the will, and the three then proceeded to the veranda where they seated .themselves
around a table together with Adolfo Greet and So gun do Gonzales, who had preceded them there.
When all were seated, Atty. Ramon Diokno began by explaining the formalities to be followed in the
signing of the will, and once that was done, Palanca signed its original and two carbon copies page by
page in the presence of the others in the group, namely, Atty. Ramon Diokno, his son Jose, Se gain do
Gonzales, and Adolfo Gruet. Next to sign was Jose Diokno and after him Segundo Gonzales and Adolfo
Gruet in that order. In succession these three affixed their signatures to each and every page of the

appellants’ case is built mainly on surmises. also opposed the petition and. supposing it to have been so executed. may not. up to three days after the death of the decedent in 1950. President Roxas. J. for safekeeping. Ruby sought advice from her uncle. that it was procured by fraud and undue pressure and influence on the part of some of the beneficiaries or some other person for their benefit. and kept are fully established by the evidence. the case being elevated to this Court because the value of the estate exceeds P50. they. After trial. Marciana and Angel. we note that appellants do not seriously dispute Palanca’s signature s . having already died. President Raxas.on the ‘will and that the whole burden of their contention is that the said will could not have been executed by Palanca on May 19. As we see It. and that he himself be appointed administrator. We may state at once that the facts narrated above as to hew the questioned will was prepare d. Neither do we doubt that the will was in fact signed on the day and in the manner testified to by all of the three attesting witnesses. Ramon Diokno. all children of the first marriage. Cuartero and her six children filed their opposition. Chuidian. Sebastian Palanca. 1945 in the law office of Atty. and thereafter Maria. she got the envelop out and opened it. Designated in the will as substitute executor. 1945. be allowed to prevail over the . 1950. whom she consulted on what to do after learning of Polanca’s death. signed. The appellants’ presented not a single witness who was in a position to deny categorically that a will was in fact executed by the decedent at the time and in the manner testified to by the attesting witnesses. The will nailed the la be President Manuel Roxas as executor. entrusted tie envelop to his daughter Ruby. They each gave a detailed and clear account of that proceeding and identified the will presented in court as that which they and the decedent signed on May 19. Ramon Diokno.original and two carbon copies in the presence of each other. 1945. Much less is there reason for us to doubt the testimony of Ruby Roxas that she had had the will in her custody from the time it was entrusted to her by her father about a month or two after they were liberated in Baguio in April. former Judge Mamerto Roxas.000. even if possible in theory as pure speculations. Their remained until 1950 when. the court rendered a decision allowing the will to probate and appointing. on September 20.the petitioner Roman Ozaeta executoro From this decision only Sebastian. asking for the probate of the will. After going over their briefs. Roman Ozaeta three days after Palanca’s death. Rosa Gonzales and her children also appeared and joined the petition for probate. They likewise identified their own signatures and that of the decedent on every page of the will and stated that the decedent affixed his signatures in their presence and that. further averred tint the provisions of the alleged will were unjust and contrary to law and prayed that the petition be denied. themselves affixed theirs in the presence of the decedent and of each other. Her father. and for his appointment as special administrator pending probate. and the latter put it in her trunk. as well as of Palanca and Atty. Roman Ozaeta.. and that. the same having been affixed by him without any intention of making the document his will. The petition was published together with the date set for Its hearing. and in the manner described by petitioner’s witnesses. and the latter told her to deliver the will to Justice Roman Ozaota whom the will named executor in default of President Roxas. upon the advice of Atty. and it would appear that after it was signed the original was put in a sealed develop and delivered to him. Ramon Diokno at the request of Palanca himself and that once Palanca had the draft he had it put in clean form by his former employee Adolfo Gruet. have appealed. still it should not be allowed because it was allegedly procured thru fraud and improper pressure and influence and did not comply with the requisites of the law. We entertain no doubt that the will was drafted by Atty. in turn. filed a petition in the Court of First Instance of Manila. and that the decedent’s signatures thereon were procured thru fraud and trickery. Acting on this advice Ruby gave the will to Mrs. for the issuance to him of letters of administration. Palanca’s youngest son by his deceased first wife. in the absence of sufficient factual basis. which. in addition to the grounds alleged by Maria Cuartero and her children. alleging that the will was not executed in accordance with law.

In the early part of 1946. and explained that lie could not have uttered such a complaint because up to the date of his departure for New York on June 2 5. Ramon Diokno in which the letter’s address was given as “114 San Rafael. Jose Diokno admitted saying on one occasion that he did not remember having witnessed a will executed by the decedent in 1945s but explained that he was confused because he had then in mind a reformed draft of a will prepared by his father at the request of the decedent in 1947 which was. Diokno had his office in 114 San Rafael St. And then It appears that the will was drafted by Diokno long before he went politically after President Roxas. however. . that in their testimony. since according to a witness for the appellants. explicit and detailed account of the circumferences surrounding the execution of the will given by witnesses who were so straight forward on d convincing In their assertions that the trial judge who heard and saw then testify accepted their testimony without any hesitation. Manila. as to who put the will in clean form. admitted having received around that time a court pleading from Atty. Ramon Diokno and Adolfo Gruet did not agree. who. As against these claims. is inconsistent with the remarks lie made in the office of Judge Ceferino de los Santos in the presence of Atty. never signed. 1946. and it also appears. and. for Atty. we find no contradiction between the testimony of Adolfo Gruet and that of Atty. that for its preparation he charged an exhorbitant fee. three years after its execution contrary to his usual practice of charging as soon as his work was finished. Jr.. but that in Itself Is no sure. Ramon Diokno’s residence at the time 1133 will was signed. that the will is couched in poor and even defective Spanish not typical of him who had a good command of that language. on his part. including his naturalization case. Ramon Diokno as to who was the one who put the will in clean and final form. 1945.000. that the will could not have been drafted by Atty.000.00 for the preparation of the said will and for his intervention in the signing thereof. Binglasan to the effect that the decedent executed no will in 1945... and. we have in the first place Atty. more than P30. explained when confronted with the alleged defects that the will was not intended as a literary piece. . indication that it was not authored by Diokno. gave testimony that in May. he was then still staying in the University of Sto. falsedades”).000. in the first place. as testified to by Gruet.the late President Roxas. for the signing of the will. that the attesting witness Segundo Gonzales was not telling the truth when he stated that in May. he actually billed the decedent P30. 1945. be defective.we doubt if any practicing lawyer would refuse to draft a will and lose a substantial fee just because a political enemy is to be therein named as executor. As to Atty.” Ramon Diokno also denied the yarn about his having complained that petitioner Roman Ozaeta had taken away from him his client. The phraseology of the will may. Tomas compound where he and his family had found refuge during the occupation. 1945.clear. anyway. 1945 Diokno did not reside or hold office at 114 San Rafael St. Ramon Diokno did not deny that. including the work of preparing his will. lastly. he had an office in Capitan Pepe Building in Manila and that it was from there that he was fetched by the decedent’s son. Manila”. To support their theory that the will in question was not prepared and executed as testified to by petitioner’s witnesses. that Diokno could not have agreed to draft a will naming a political enemy. And in the second place appellants maintain that it was improbable the will was signed at the time and place and in the manner already stated above because in May. Ramon Diokno’s categorical declaration under oath that it was he who drafted the will in question and that . branding the story a nasty falsehood (“tejido de barbaridades. executor. the appellants. we find that appellants’ own witness. who became a presidential candidate only. that the testimony of lose Diokno that lie witnessed the signing of the will on May 19. Palanca. Dinglasan. Manila. Contrary to appellants’ clam.. Ramon Diokno because Diokno was once hoard to complain that petitioner Roman Ozaeta had taken away a client (Palanca) from him. Atty. in appellants’ oponion. he was still Palanca’s lawyer in ‘several cases.’ although actually he received only P21. that appellants’ own lawyer Atty. contend. the latter was the one who put the final draft of the will in clean form. Atty. Adel Hernandez.00 in deference to the decedent’s request for a reduction. Carlos Palanca. .

who were then living with the decedent in petitioner’s house. and that a specific device fails or is impliedly re voiced as to the property conveyed whore the testator subsequent to the execution of a will voluntarily disposes of the property by absolute conveyance. Appellants. we find that the Imputation of blindness is not witness Ariston Hermano. including free disposal. but the conclusion drawn therefrom that the paper could not have come from a single bunch but from different bunches. Gaz. The difference in the watermarks of the paper used is not denied. Vano et al. as this Court observed in a case. according to appellants. while the other part fails to take account of the fact that during the lifetime of the testator he retains full ownership and control. man suffering from several ailments besides cataract in both eyes. to have been executed and that he could. both testified that the decedent had to request then to road for him reports and contracts in 1945 because of his failing . 1945? it is inconceivable that a man of his intelligence would include false statements therein. supposing it to be correct. with the tolerance and cooperation of Rosa Gonzales and her children. and therefore the will was not typewritten in one continuous set. He would even concede the possibility that the decedent may have signed page 6 ahead of the other pages when his pen was still very wet. “speculations on these matters should give way to the positive declaration of the attesting witnesses.” (Roxas vs... and that it is also surprising that properties specifically bequeathed in that will to some of the heirs should afterwards be disposed of by him in favor of other persons without making the corresponding change in the will. 1954. as well as to the somewhat thicker ink diffusions in decedent’s signatures on page 6 when compared with his signatures on the other pages of the will. of the word. And that. therefore.) As to the charge that the will was procured thru undue and improper pressure and influence by those who stood to profit therefrom or by some other person for their benefit. the expert witness for the appellants could not be positive that the last page of the will and other pages were not signed on the same date. Though appellants would want to make the court believe that the decedent was already blind at the time the will was alleged. the scarcity of paper in those early days after Liberation may easily account for the use of paper with different watermarks. he (petitioner). appelants draw the conclusion that the will could not have been typewritten or signed in one continuous act. instilled fear in his mind and thereafter controlled all his acts in such a way that he could not but do what he was told and had to sign whatever papers he was asked to sign. Roxas et al. since there is no claim here about any page having been substituted. of the properties bequeathed by him in the will. In any event. on the contrary. Vaño vs. Atty Dinglasan1 s brother-in-law. GR NO. with the explanation that though he was not a lessee in the real sense. June 30. maintain that direct evidence of undue influence is not essential. As was explained by petitioner’s expert witness. 2177 2182. are ‘subject to inherent infirmities. is how. and appellants then offer the theory that after the petitioner had succeeded In convincing the decedent—whom they picture to be then “a very old. is of no consequence. not have read or signed it. 1945. however.. he. and he corroborates petitioner’s expert witness on the point that the paper of the last page was different in kind and porosity from that use for the first five pages.” whose testimony “ought to prevail over expert opinions which cannot be mathematically precise but which. Calling attention to the dissimilarity in the watermarks on the different sheets of paper used in the final draft of the will. used to frequent a room in tint building which he-considered as his office. Indeed. however. L-6303. 48 Off. that a contest on the ground of fraud and undue influence may be waged successfully on circumstantial evidence and that the contestant is entitled to the benefit of all inferences which may be reasonably and legitimately derived from established facts. The appellants also argue that if the decedent had really executed the questioned will on May 19. And the difference in the thickness of ink diffusion noted by the appellants does not necessarily support their deduction that the will was not signed in one sitting. the thicker ink diffusion on page 6 is due to the fact that the page is on a paper more porous than the other sheets used.Segundo Gonzales on his part clarified his statement about his having an office in Cap it an Pepe Building in May. Moreover. we note that no direct evidence has been presented to support it. Appellants beg the first part of this argument. he came to sign the will In question. But this seems to us to be far-fetched deduction from the established fact that the decedent was at the time of the execution of t?he will already old and somewhat sickly and living with Rosa Gonzales and their children in petitioner’s house.”—to live with him.

On the contrary. duly proved. Dr. Waterous also stated that the deceased could still see things around” and went unaided to the dark room in-his clinic” when he went there for a check-up at that time. he otorgado esto testament en elidioma castellano. supra. the deceased. and we think that it is beyond cavil. (Aldaba a vs. who died a respected member of this Court. Jur.R. even held that where the first page is not numbered but at the bottom thereof there is written the phrase “pase a la 2.o en presencia de todos y cada uno de loo tres testigos quo . p. during. Waterous. “It is not enough that . as already declared by this Court. this Court. Appellants do not dispute the decedent’s testamentary capacity or his knowledge of the language in which the will was written.Am. he was not a master of his will but had to take orders from’ ‘somebody o Moreover. “to forestall suppression or substitution of pages” (Martir v. 546. that the signatures of the testator and of the attesting witnesses appearing thereon are genuine. (57 Am. The decedent. 308). 70 Phil.. It is not denied that the deceased had cataract in both eyes even before 1941 c But Dr. que liablo. 72 Phil. supposing that the questioned will was really. our conclusion that the will involved In tills case cannot be disallowed on the ground that It was procured.) In the case of Mendoza vs. Roque. executed. was still signing checks in 1945 while Tan Guan Siu. testified that the latter’ s affliction in the eyes impaired only his “distance vision” and he could still read “inclose-up” In. neither of them could assure the court that the deceased was in fact blind. 378. Roque. and without the presence of any the beneficiaries named therein or of ‘the petitioner himself whom appellants apparently suspect of having used pressure or influence in favor of the said beneficiaries. to those matters which the law requires to be stated therein. which purports to be the attestation clause. W. Pila. Martir. There must be substantial evidence tint it was actually exercised. And as a matter of fact this Court has already held that numbering a page of the will at the bottom does not make the will void for that reason. Angel Palanca ‘ even stated that his father.there was an opportunity to exorcise undue influence or a possibility that it might have been exercised. y lo he promulgado y firmad.eyesight.’ and after the execution of the will. 1946 and could read-papers by himself in 1949 when lie was already living in his house on Taft Avenue.was still good.. were not observed In t lie present case. But appellants contend that the paging of the will rs defective in tint the first page is numbered.June. at the bottom and that the will does not contain an attestation clause. Not much need be said on appellants’ content ion that the legal formalities for the execution of a will. This behaviour of the decedent constitutes a silent ratification of the contents of the impugned will and refutes the claim of undue influence and improper pressure.the weight of authority regards as insufficient to sustain a verdict defeating a will on that ground (57 . therefore. to be still in full possession of his mental faculties and was not so helpless as appellants would picture him to be. the will is not for that reason to be declared invalid. 821 c). Appellants’ theory is. another witness for the appellants declared that the deceased still had a good sight in July. 89) or “to make falsification more difficult.” (Aldaba vs. 43 Phil. and there is no showing that before. Jur. 312c) It is. the will was signed by him In the office of a distinguished lawyer.. though old and suffering from diabetis would appear. disproved by decedent’s failure to revoke or otherwise’ alter the questioned will as soon as’ he stopped out of petitioner’s house and moved to his own where he led a free man’s life up to five’ years after the execution of the will in question. L. even supposing that these circumstances were. leo y escribo. furthermore.” (21 A. There is no merit in the claim that the will in question does net contain the attestation clause required by law in that the attestation only appears in Its last paragraph. It is obvious that the claim that the will was obtained thru undue influence and improper pressure has no substantial factual basis but is more a matter of conjecture engendered by suspicion which . The paragraph in question reads: “En testimonio de lo cual.a pagina”. 1946 because his “near vision. H. a disinterested witness who was treating the deceased.pil. and that it was only the decedent who certified. The object of the law in providing that the pages of a will “shall be numbered correlatively in letters placed on the upper part of each sheet” is. thru improper influence or pressure.) We cannot conceive how the placing of the number of the page at the bottom of the sheet might defeat such purpose.

for it is not supported by any evidence. with costs against the appellants Paras..B. 1951. That an attestation clause of this kind.. and a long line of other cases. vs. November 29. Attention. Gonzales vs. MACARIO G. MILAGROS PALANCA DE FURER. 1459. however. L-3497. LABRADOR. C. Finally. Reyes. GR NO. Wherefore. Picazo and Manuel S.Appellants cite the case of Testate Estate of Carlos Gil. ANTONIO G. Sebastian C. we may take judicial mot ice of tie fact that petitioner is a lawyer of learning aid ability. Judge of First Instance of Manila. respondents. it appoints as special administrator any person other than the executor named in the will? . J. Roxas. y nosotros. on Manila hoy 19 de mayo de 1945.: The question posed by the petition filed in this case is: Does a probate court commit an abuse of discretion if. Palanca in his own behalf. a former Solicitor General and Secretary of Justice. Cuevas vs. los tres testigos abajo firmados.L. LEONARDA PALANCA DE ARANAS. On the other hand. y nosotros. petitioners. Montemayor. de todo lo cual yo.J. Gonzales. Lichauco. DE PALANCA. el testador. Roque. GR NO. is legally sufficient has already been decided in the cases of Aldaba vs. Arguego and Sison for investors. Sison. G. No. the decision appealed from is affirmed. supra. supra.as las seis paginas do que so compone este testaments.. With nothing proved against his character and ability. L-5436 June 30. J. concur. San Jose for petitioners... certificamos y damos fe. 1953 ROMAN OZAETA.” The latter part of the above paragraph which appellants seem to Ignore or overlook says: “x x x de todo lo cual yo. Padilla. Bautista Angelo. 49 Off. Gaz. los tres testiges abajo firmados. JJ. In the belief that the decision therein rendered favors their contention. and BANK OF THE PHILIPPINE ISLANDS. HONORABLE POTENCIANO PECSON.R. Bengzon. Labrador. JR. PALANCA. and Endencia. SEVERINA G. appellants object to the appointment of petitioner as executor.” This makes it quite clear that it is not only the testator but also the attesting witnesses who have taken part in the certification of the circumstances required to be stated in the attestation clause. Reyes. on mi presencia y en la do cada uno. Achacoso. firman conmigo on tod. PALANCA. subsequently revoked and the Court reverted to the liberal interpretation followed in the cases of Aldaba vs. Concepcion. and twice a member of the highest court of the land where he served with distinction. cada uno de cuyos tostigos lo atestiguaron y firmaron a ml rue go. must be called to the fact that the decision first rendered in that case was on a motion for reconsideration. CARLOS PALANCA. L- 3272-73. A. Jugo. el testador. 1951. alleging that “he is unfit to execute the duties of the trust by reason of want of understanding and integrity. certificamos y damos fe x x x.” But this allegation Is gratuitous. PALANCA. de elios. Roque. PALANCA. ROSA GONZALES VDA. JUSTO G. PALANCA. May 18. and RAMON G. we must reject the charge that he is unfit for the position of executor to which the lower court as well as the testator himself has seen fit to name him. pending an appeal against its order or judgment admitting a will to probate and appointing as judicial administrator the person named therein as executor.

leaving a will executed by him on May 19. acting as sponsor in her marriage with the deceased. which expressly gives the order of preference of the persons that may be appointed regular administrator. is the last will of Carlos Palanca Tanguinlay. Roxas fails to qualify. the Philippine Trust Company presented a petition to resign as special administrator on the ground of incompatibility of interest. because the order had been appealed. 1945. 1950. It is silent as to the person that may be appointed as special administrator. With costs against the oppositors. 1951. Roman Ozaeta. the court rendered an order admitting the will to probate and appointing petitioner as administrator. 1950. as executor. In the will petitioner Roman Ozaeta. On April 20. that the appointment of special administrators is not governed by the rules regarding the appointment of .000 with sufficient sureties and subject to the approval by this court. We have held in the case of Roxas vs. petitioner presented a petition for the probate of the will. and have chosen to decide the issue from a purely legal point of view. 1951. etc. 1951. let letters testamentary issue accordingly. a non-applicant and a stranger to the proceedings. less ability and experience in handling estates as the appointees — the previous and the subsequent one — are not actually the reasons that impelled him to deny petitioner's appointment. claim that petitioner had close personal relations with Rosa Gonzales (second wife of deceased) and her children. On the other hand. the court declares that the document which was executed by the testator on May 19. former associate justice of this Court. It should be noted at the outset that Rule 81 of the Rules of Court. and the court on October 6. alleged partiality to one group of heirs. as it had granted a loan to heir Angel Palanca. Upon Palanca's death. But on October 23rd. and thereupon the present petition was filed. 1945 (Exhibit D). but the court appointed Sebastian Palanca. under the provisions of which the order appealed from was made. special administrator. (a group of heirs). namely. The order reads thus: In view of all the foregoing. grants discretion to the probate court to appoint or not to appoint a special administrator. et al. Petitioner moved to reconsider the order. Thereupon petitioner reiterated his previous petition. the court allowed the Philippine Trust Company to resign. however. reconsidered its order appointing Sebastian Palanca special administrator. and General Roxas having died previously. Some of the heirs of the decedent opposed this petition. at the same time praying that he be appointed special administrator. who had pledged to it shares of the Far Eastern University allegedly belonging to the estate of the deceased. obtaining a loan from her family. Petitioner claims that the reason why the respondent judge does not appoint him special administrator is his personal dislike for him. intervenors Maria Cuartero. In its order the court held that it has discretion to choose the special administrator and is not bound to appoint the person named therein as executor. and appointed instead the Bank of the Philippine Islands. The order is dated June 30. unlike section 6 of Rule 79. to take the place of the Philippine Trust Company.. and that the reasons given by the judge in not appointing him. We have overlooked all the personal grounds or reasons given by the parties. The court appoints the petitioner. was named executor if General Manuel A. and its probate is hereby allowed. Pecson. with a bond of P50. Once this decision has become final and upon the approval of the said bond and the taking of the oath of office. one of the heirs. appointed the Philippine Trust Company. And on October 25.The facts giving rise to the question may be briefly summarized as follows: Carlos Palanca died on September 2. but his motion was denied.

767-768. 762. 755. should be as rare as possible in this court if people of property are to continue to feel as ease and in security in this state. therefore. and for the appointment of a special administrator. for suspending his appointment. it is not improbable that the estate may again be subjected to the same expensive cost of administration. 9 Ky. The only reason or ground. The choice of his executor is a precious prerogative of a testator. 46 Off. but one that is reasonable and logical and in accord with fundamental legal principles and justice. a necessary concomitant of his right to dispose of his property in the manner he wishes. has submitted a bill for P90. the will has already been admitted to probate. when no reasonable objection to his assumption of the trust can be interposed any longer. Gaz. his judgment.S. however. The intrusion of nominees of the court.regular administrators. . Civil Code of the Philippines). The curtailment of this right may be considered as a curtailment of the right to dispose. who is not the petitioner himself. very distasteful to the inhabitants of this state. Petitioner has cited precedents in the surrogate courts of the State of New York to support his claim that as the will appointing him regular administrator has been admitted to probate by the trial judge. 1023). 593. To do so would be delaying the fulfillment of the wishes of the testator and subjecting the estate to unnecessary expense. [5] 2058. or to make his personal likes and dislikes prevail over. And as the rights granted by will take effect from the time of death (Article 777. and respondent judge himself has expressly appointed petitioner as administrator. the judge makes the following very pertinent remarks: . It is the testator that appoints his executor. (Holbrook vs. which had acted as special administrator for a period of only a few months. but more consonant with the dignity of a court of this character. In the case of In re Shonts' Estate. strangers to the dead. And there is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of the special administrator. 82 Phil. Under these circumstances. It is natural that the testator should desire to appoint one of his confidence. the management of his estate by the administrator of his choice should be made as soon as practicable. one who can be trusted to carry out his wishes in the disposal of the estate. it is the duty of the court to issue letters testamentary to the person named as executor upon his application (23 C. It also appears that the Philippine Trust Company. he should now be appointed special administrator during the pendency of the appeal against the order admitting the will to probate.). . such discretion should not be a whimsical one. as the question as to his peculiar fitness for such a position or his want of ability to manage the estate can not be addressed to the discretion of the county judge. 178 N. This would cut deep into the income of the estate. 6 S. or his passions to rule. It is my firm belief that the appointment of the executors named in a will as temporary administrators during contested probates is not only more economical for suitors and estates in ninety-nine cases of a hundred. is a very technical one. . . and it must be exercised within the limits thereof. (Roxas vs. 592.000.) But we further held.J. that while the choice of the person lies within the court's discretion. It has been held that when a will has been admitted to probate. it would seem unreasonable to refuse to appoint the petitioner as special administrator. and if the new special administrator appointed by the respondent judge takes office. In the case at bar..Y. Such discretion must be based on reason and legal principle.W. Head. 407. Pecson. The fact that a judge is granted discretion does not authorize him to become partial.

and the temporary injunction issued by the court made absolute. . it appears from several affidavits that he was for a long period of time intimately associated with Mr. Rep. 772. concur. Erlanger's various activities were conducted. Erlanger's life. This association not only involved a personal friendship. Erlanger as client. Erlanger's various enterprises. 242 N. After the admission of a will to probate. Bengzon. and in view of the special circumstances of this case. 6th Edit. Erlanger as executor in three wills.. In addition to the fact that he was selected by Mr. Jessup-Redfield Surrogate's Courts. also reiterates the same principle. and.The case of In re Erlanger's Estate.Y. Baron as lawyer and Mr. N. Erlanger. except upon strict proof of the statutory grounds of incompetency.S. Law Journal. JJ.. but also the relationship of Mr. the appealed order reversed.253). 114 N. C. Matter of Hilton's Will. these considerations do not constitute a disqualification.Y. 854. For the foregoing reasons the person selected by the testator in three successive wills will be appointed. a close business contact with Mr. (Pages 254-255). Pablo.Y.Y. (Pages 252. 249. by this experience to safeguard the estate as temporary administrator. in addition. Reyes. Matter of Ashmore's Estate. The writ prayed for is. Erlanger's financial transactions. Montemayor. Jugo and Bautista Angelo.Y. therefore. the widow or friend or other person selected in the will. The courts have always respected the right to which a testator enjoys to determine who is most suitable to settle his testamentary affairs. Mr.S. He held powers of attorney from him in the last years of Mr. and his solemn selection should not lightly be disregarded. 48 Misc. 312. 1073. 1912. granted. the courts will not name a better executor for the testator nor disqualify. Let temporary letters of administration be issued in favor of petitioner during the pendency of the appeal from the order admitting the will to probate. page 743. Matter of Robert. therefore. 61 N. He is an attorney of long experience and his professional standing is attested by several affiants.J. 219 N. Tuason. He receives no legacy under the will. 393. She also stresses his personal hostility to her. Rep. January 9th. 96 N. Baron as temporary administrator is founded upon her charge that he exercised undue influence upon the testator in the drafting of the will offered for probate here.. by a judicial veto.S. Paras. He is qualified. 29 Misc. Baron was an officer or director of over thirty corporations through which Mr.E. 387. In my opinion. The claimant's principal objection to the selection of Mr. Matter of Leland's Will. It involved also knowledge of Mr. 532.