TESTATE ESTATE OF LATE

GREGORIO VENTURA: MARIA

VENTURA v. GREGORIA VENTURA
243 Phil. 952

PARAS, J.:

This is an appeal from the order of the Court of First Instance of Nueva
Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the
late Gregorio Ventura, dated October 5, 1965, removing the appellant
Maria Ventura as executrix and administratrix of the estate of the late
Gregorio Ventura, and in her place appointing the appellees Mercedes
Ventura and Gregoria Ventura as joint adiministratrices of the estate.
(Record on Appeal, pp. 120-131.)

Appellant Maria Ventura is the illegitimate daughter of the deceased

Gregorio Ventura while Miguel Ventura and Juana Cardona are his son
and surviving spouse who are also the brother and mother of Maria
Ventura. On the other hand, appellees Mercedes and Gregoria Ventura
are the deceased's legitimate children with his former wife, the late
Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of
appellees was denied by the deceased in his will (Record on Appeal, p.
4).

On December 14, 1953, Gregorio Ventura filed a petition for the

probate of his will which did not include the appellees and the petition

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 was docketed as Special Proceedings No. 812 (Record on Appeal, pp.
1-3). In the said will, the appellant Maria Ventura, although an
illegitimate child, was named and appointed by the testator to be the
executrix of his will and the administratrix of his estate (Record on
Appeal, p. 7).

In due course, said will was admitted to probate on January 14, 1954
(Record on Appeal, pp. 8-10). Gregorio Ventura died on September
26, 1955. On October 10, 1955, the appellant Maria Ventura filed a
motion for her appointment as executrix and for the issuance of letters
testamentary in her favor (Record on Appeal, pp. 10-11). On October
17, 1955, Maria Ventura was appointed executrix and the
corresponding letters testamentary was issued in her favor (Record on
Appeal, pp. 11-12).

On or about July 26, 1956, Maria Ventura submitted an inventory of

the estate of Gregorio Ventura (Record on Appeal, pp. 12-20).

On June 17, 1960, she filed her accounts of administration for the
years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said
account of administration was opposed by the spouses Mercedes
Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp.
27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,
1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the
veracity of the report as not reflecting the true income of the estate
and the expenses which allegedly are not administration expenses. But
on January 25, 1961, Maria Ventura filed a motion to hold in abeyance
the approval of the accounts of administration or to have their
approval without the opposition of the spouses Mercedes Ventura and

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 Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the
ground that the question of the paternity of Mercedes Ventura and
Gregoria Ventura is still pending final determination before the
Supreme Court and that should they be adjudged the adulterous
children of testator, as claimed, they are not entitled to inherit nor to
oppose the approval of the accounts of administration (Record on
Appeal, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuz
filed on February 2, 1961 their opposition to the motion to hold in
abeyance the approval of the accounts of administration on the
ground that Mercedes and Gregoria Ventura had already been
declared by the Court of First Instance in Civil Cases No. 1064 and
1476, which cases are supposed to be pending before the Supreme
Court, as the legitimate children of Gregoria Ventura, hence, they have
reason to protect their interest (Record on Appeal, pp. 36-39). On
February 9, 1961, the motion to hold in abeyance the approval of the
accounts was denied (Record on Appeal, pp. 39-40).

It appears that on July 12, 1963, the Court set the case for pre-trial on
August 7, 1963 in connection with the accounts of the executrix Maria
Ventura dated June 17, 1960 and the Motion to Annul Provision of Will
dated July 14, 1962 of Mercedes Ventura (Record on Appeal, p. 45).

On October 22, 1963, four motions were filed by Mercedes Ventura

and Gregoria Ventura, namely: (1) motion to remove the executrix
Maria Ventura which was supplemented on April 27, 1965; (2) motion
to require her to deposit the harvest of palay of the property under
administration in a bonded warehouse; (3) motion to render an
accounting of the proceeds and expenses of administration; and (4)
motion to require her to include in the inventory of the estate certain

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 excluded properties (Record on Appeal, pp. 50-53; 71). An opposition
to said motions was filed by the heirs Juana Cardona and Miguel
Ventura and by the executrix Maria Ventura herself (Record on Appeal,
pp. 56-61; 61-70 and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the

joint motions to require an Up-to-date Accounting and to Require
Executrix Ventura to Include Excluded Properties in Her Inventory were
ordered withdrawn (Order dated February 2, 1965, Record on Appeal,
p. 73). The other two motions were however set for hearing.

The grounds of aforesaid joint motions to remove the executrix Maria

Ventura are: (1) that she is grossly incompetent; (2) that she has
maliciously and purposely concealed certain properties of the estate
in the inventory; (3) that she is merely an illegitimate daughter who
can have no harmonious relations with the appellees; (4) that the
executrix has neglected to render her accounts and failed to comply
with the Order of the Court of December 12, 1963, requiring her to file
her accounts of administration for the years 1961 to 1963 (Record on
Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating
aforesaid order of December 12, 1963 (Record on Appeal, p. 76); and
(5) that she is with permanent physical defeat hindering her from
efficiently performing her duties as an executrix (Record on Appeal,
pp. 50-53 and 74-79).

On May 17, 1965, the executrix Maria Ventura finally submitted her
accounts of administration covering the period 1961 to 1965 (Record
on Apeal, pp. 79-84) which were again opposed by the spouses
Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by

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 the spouses Mercedes Ventura and Pedro Corpuz on September 29,
1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix
filed her supplemental opposition to the aforesaid four motions, and
prayed that the joint supplemental motion to remove the executrix be
denied or held in abeyance until after the status of Mercedes and
Gregoria Ventura as heirs of the testator is finally decided (Record on
Appeal, pp. 85-101). On June 3, 1965, the Court, finding that the
estate taxes have not been paid, ordered the administratrix to pay the
same within thirty (30) days. On September 13, 1965, the lower court
denied the suspension of the proceedings and deferred the resolution
of the joint motion to remove executrix Maria Ventura until after the
examination of the physical fitness of said executrix to undertake her
duties as such. Also, it ordered the deposit of all palay to be harvested
in the next agricultural year and subsequent years to be deposited in a
bonded warehouse to be selected by the Court and the palay so
deposited shall not be withdrawn without the express permission of
the Court (Record on Appeal, pp. 103-105). On September 21, 1965,
spouses Exequiel Victorio and Gregoria Ventura filed their opposition
to the accounts of administration of Maria Ventura dated May 17, 1965,
while that of spouses Mercedes Ventura and Pedro Corpuz was filed
on September 29, 1965, both oppositions alleging among others that
said accounts do not reflect the true and actual income of the estate
and that the expenses reported thereunder are fake, exhorbitant and
speculative (Record on Appeal, pp. 106-120).

On October 5, 1965, the court a quo, finding that the executrix Maria
Ventura has squandered the funds of the estate, was inefficient and
incompetent, has failed to comply with the orders of the Court in the
matter of presenting up-to-date statements of accounts and

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 neglected to pay the real estate taxes of the estate, rendered the
questioned decision, the dispositive portion of which reads:

"WHEREFORE, Maria Ventura is hereby removed as executrix and

administratrix of the estate and in her place Mercedes Ventura and
Gregoria Ventura are hereby appointed joint administratrices of the
estate upon filing by each of them of a bond of P7,000.00. Let
letters of administration be issued to Mercedes Ventura and
Gregoria Ventura upon their qualification.

"IT IS SO ORDERED."

(Record on Appeal, pp. 120-131).

Hence, this appeal.

In their brief, appellants Maria Ventura and spouses Juana Cardona

and Miguel Ventura assign the following errors allegedly committed by
the probate court:

"ASSIGNMENT OF ERRORS

"The lower court erred in ordering the removal of Maria Ventura as

executrix and adiministratrix of the will and estate of the deceased
Gregorio Ventura without giving her full opportunity to be heard
and to present all her evidence.

II

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 The lower court erred in finding that the executrix Maria Ventura
had squandered and dissipated the funds of the estate under her
administration.

III

The lower court erred in finding that the executrix Maria Ventura
was inefficient and incompetent.

IV

That, considering the circumstances surrounding the case, the

lower court erred in finding that the failure of Maria Ventura to
submit her periodical accounting had justified her removal as
executrix.

The lower court erred in considering as an established fact that the

appellees Mercedes Ventura and Gregoria Ventura are the
legitimate daughters of the deceased Gregorio Ventura.

VI

The lower court erred in finding that the devises and bequests in
favor of Maria Ventura and Miguel Ventura as specified in
paragraph 8 of the last Will and Testament of the late Gregorio
Ventura have ipso facto been annulled.

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 VII

The lower court erred in allowing the appellees Mercedes Ventura

and Gregoria Ventura to intervene in the hearing of the accounts of
administration submitted by the executrix Maria Ventura and/or in
not suspending the hearing of the said accounts until the said
appellees have finally established their status as legitimate children
of the deceased Gregorio Ventura.

VIII

The lower court erred in appointing (even without a proper petition

for appointment and much less a hearing on the appointment of)
the appellees Mercedes Ventura and Gregoria Ventura who have an
adverse interest as joint administratrices of the estate of the
deceased Gregorio Ventura.

IX

The lower court erred in not appointing the surviving widow, Juana
Cardona, or Miguel Ventura, as administratrix of the estate of
Gregoria Ventura in case the removal of Maria Ventura as executrix
and administratrix thereof is legally justified.

Considering that there are in fact two (2) factions representing

opposite interests in the estate, the lower court erred in not

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 appointing Juana Cardona, or Miguel Ventura, as one of the two (2)
administratrices."

(Joint Brief for the Appellants, pp. 1-4)

On July 19, 1967, Atty. Arturo Tolentino (representing appellees

Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco
(representing Gregoria and Exequiel Victoria), having failed to submit
their respective briefs within the period for the purpose, which expired
on July 2 and May 29, 1967, respectively, the Supreme Court Resolved
to consider this case submitted for decision WITHOUT SAID
APPELLEES' BRIEF (Rollo, p. 152).

The crucial issue in this case is whether or not the removal of Maria
Ventura as executrix is legally justified. This issue has, however,
become moot and academic in view of the decision of this court in
related cases.

At the outset, it is worthy to note that aside from the instant special
proceedings, there are two other civil cases involving the estate of the
deceased Gregorio Ventura, namely, Civil Cases Nos. 1064 and 1476.
Civil Case No. 1064 was filed on December 2, 1952 by herein appellee
Gregoria Ventura in the Court of First Instance of Nueva Ecija, Branch I,
against the other appellees herein Mercedes Ventura and their father,
Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria
Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura
claimed that they are the legitimate children of Gregorio Ventura and
his wife Paulina Simpliciano, who died in 1943, and asked that one-half
of the properties described in the complaint be declared as the share

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 of their mother in the conjugal partnership, with them as the only
forced heirs of their mother Paulina (Joint Brief for the Appellants, pp.
53-68).

Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and
Juliana, all surnamed Simpliciano, against Gregorio Ventura and the
two sisters, Mercedes and Gregoria Ventura, before the Court of First
Instance of Nueva Ecija, Branch I. They alleged that as the only
children of Modesto Simpliciano, sole brother of Paulina Simpliciano,
they, instead of Mercedes and Gregoria Ventura, whom they claimed
are adulterous children of Paulina with another man, Teodoro Ventura
and as such are not entitled to inherit from her, are the ones who
should inherit the share of Paulina Simpliciano in the conjugal
partnership with Gregoria Ventura (Joint Brief For The Appellants, pp.
69-79).

It appears that on November 4, 1959, after a joint hearing of Civil

Cases Nos. 1064 and 1476, the lower court rendered its judgment, the
dispositive portion of which reads as follows:

"WHEREFORE, judgment is hereby rendered declaring Mercedes

Venture and Gregoria Ventura to be the legitimate daughters of
Paulina Simpliciano and Gregorio Ventura; declaring that as such
legitimate daughters of Paulina Simpliciano they are entitled to 1/2
of the properties describe in paragraph six of the complaint;
ordering the defendant Maria Ventura, as administratrix of the
estate of Gregorio Ventura to pay to Mercedes Ventura and
Gregoria Ventura the amount of P19,074.09 which shall be divided
equally between Mercedes and Gregoria Ventura ... declaring that

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 Mercedes Ventura and Pedro Corpuz are the exclusive owners of
the properties described in the certificates of Title Nos. T-1102, T-
1212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively;
ordering Mercedes Ventura and Pedro D. Corpuz to pay to the
conjugal partnership of Gregoria Ventura and Paulina Simpliciano
the sum of P100,000.00, one-half of which shall pertain to the
estate of Gregorio Ventura and the other half to the estate of
Paulina Simpliciano to whom Mercedes and Gregoria Ventura have
succeeded, to be divided between Mercedes and Gregoria in equal
parts; and dismissing Civil Case No. 1476. The parties are urged to
arrive at an amicable partition of the properties herein adjudicated
within twenty days from receipt of this decision. Upon their failure
to do so, the Court shall appoint commissioners to divide the
properties in accordance with the terms of the decision. Without
pronouncements as to costs." (Underscoring supplied). (Joint Brief
for the Appellants, pp. 37-38.)

Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul

the provisions of the will of the deceased Gregorio Ventura in Special
Proceedings No. 812, which motion was opposed by Miguel Ventura
and Juana Cardona and later by Maria Ventura. They claimed that the
decision dated November 4, 1959 in Civil Cases Nos. 1064 and 1476
was not yet final.

On February 26, 1964, the trial court annulled the institution of the
heirs in the probated will of Gregorio Ventura. The motion for
reconsideration of the aforesaid order filed by executrix Maria Ventura
was denied on June 11, 1964.

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 Accordingly, Maria Ventura appealed the February 26, 1964 and June
11, 1964 orders of the probate court in Special Proceedings No. 812
before the Supreme Court and was docketed as G.R. No. L-23878. On
May 27, 1977, this Court, through then Associate Justice Antonio P.
Barredo, ruled, as follows:

"And so, acting on appellees' motion to dismiss appeal, it is Our

considered opinion that the decision in Civil Cases Nos. 1064 and
1476 declaring that appellees Mercedes and Gregoria Ventura are
the legitimate children of the deceased Gregorio Ventura and his
wife, Paulina Simpliciano, and as such are entitled to the annulment
of the institution of heirs made in the probated will of said
deceased became final and executory upon the finality of the order
approving the partition directed in the decision in question. We
need not indulge in any discussion as to whether or not, as of the
time the orders here in question were issued by the trial court said
decision had the nature of an interlocutory order only. To be sure, in
the case of Miranda, aforementioned, the opinion of the majority of
the Court may well be invoked against appellant's pose. In any
event, even if the Court were minded to modify again Miranda and
go back to Fuentebella and Zaldariaga, - and it is not, as of now -
there can be no question that the approval by the trial court in Civil
Cases Nos. 1064 and 1476 of the partition report of the
commissioners appointed for the purpose, one of whom, Emmanuel
Mariano, is the husband of appellant, put a definite end to those
cases, leaving nothing else to be done in the trial court. That order
of approval is an appealable one, and inasmuch as no appeal has
been taken from the same, it is beyond dispute that the decision in
controversy has already become final and executory in all respects.

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 Hence, the case at bar has become moot and academic." (Ventura
vs. Ventura, 77 SCRA 159, May 27, 1977)

Under Article 854 of the Civil Code, "the preterition or omission of

one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious," and as a
result, intestacy follows, thereby rendering the previous appointment
of Maria Ventura as executrix moot and academic. This would now
necessitate the appointment of another administrator, under the
following provision:

Section 6, Rule 78 of the Rules of Court:

"When and to whom letters of administration granted. - If no

executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be or next of

kin, or both, in the discretion of the court, or to such person as
such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;"

xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio

Ventura is Juana Cardona while the next of kin are: Mercedes and
Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has

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 been defined as those persons who are entitled under the statute of
distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A.
620, 88 NE 341). It is generally said that "the nearest of kin, whose
interest in the estate is more preponderant, is preferred in the choice
of administrator. 'Among members of a class the strongest ground for
preference is the amount or preponderance of interest. As between
next of kin, the nearest of kin is to be preferred'". (Cabanas, et al. vs.
Enage, et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p.
416, cited in Francisco Vicente J., The Revised Rules of Court in the
Philippines Vol. V-B, 1970 Ed., p. 23).

As decided by the lower court and sustained by the Supreme Court,

Mercedes and Gregoria Ventura are the legitimate children of Gregorio
Ventura and his wife, the late Paulina Simpliciano. Therefore, as the
nearest of kin of Gregorio Ventura they are entitled to preference over
the illegitimate children of Gregorio Ventura, namely: Maria and Miguel
Ventura. Hence, under the aforestated preference provided in Section
6 of Rule 78, the person or persons to be appointed administrator are
Juana Cardona, as the surviving spouse, or Mercedes and Gregoria
Ventura as nearest of kin, or Juana Cardona and Mercedes and
Gregoria Ventura in the discretion of the Court, in order to represent
both interests.

PREMISES CONSIDERED, the appeal interposed by appellants Maria

Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED.

SO ORDERED.

Padilla and Sarmiento, JJ., concur.

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 Yap, C.J., joins J., Melencio-Herrera in her dissenting opinion.

DISSENTING OPINION

MELENCIO-HERRERA, J.:

Consistent with my "concurrence in the result" in Acain vs. IAC, et als.,

G. R. No. 72706, October 27, 1987, preterition results in total intestacy
if it was mistakenly made or through inadvertence. In this case there
was no mistake nor oversight whatsoever. The testator himself sought
the probate of his Will during his lifetime wherein he not only excluded
his "forced heirs" but even denied paternity.

Under the circumstances, the omission being obviously intentional, the

effect is a defective disinheritance covered by Article 918 of the Civil
Code under which the institution of heir is not wholly void but only in
so far as it prejudices the legitimates of the persons disinherited. The
nullity is partial unlike in the preterition where the nullity is total.

This conclusion further finds support in the prevailing spirit in the

codal provisions on succession, which is to make the intention of the
testator prevail (e.g., Articles 783, 790, 848, 852, 861, Civil Code).

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