SECOND DIVISION
[G.R. No. 22042. March 17, 1925. ]
In the matter of the estate of Esteban Jalandoni, deceased. JUAN JAMORA, Petitioner, and THE DIRECTOR OF THE BUREAU OF EDUCATION, legatee-appellant, v. JOSE JARANILLA, Opponent-Appellee.
Attorney-General Villa-Real for Appellant.
Jose Lopez Vito for Appellee.
SYLLABUS
1. TESTATE PROCEEDINGS; SALE OF REAL PROPERTY; CONSENT OF HEIRS AND LEGATEES. — Under the sections 714 and 718 of the Code of Civil Procedure, and indispensable requisite in order that the administrator may sell or exchange, with the authority of the court, any real property of the estate, is the consent of the heirs, legatees, and other persons interested therein. If sale or exchange is made without said requisite, it will be void and of no effect, although it proves beneficial to all the parties interested.
D E C I S I O N
VILLAMOR, J.:
The facts in this case are stated in the order appealed from, which reads thus:jgc:chanrobles.com.ph
"On 27th of November, last, a motion was filed in this proceeding by the Attorney-General, praying for the issuance of an order declaring the illegality and invalidity of the deed of transfer of December 6, 1922, executed by the judicial administrator, as well as of the order dated December 2, 1922, authorizing said transfer.
"On the 7th of this month, counsel from Jose Jaranilla filed an opposition to the motion of the Attorney-General.
"The Attorney-General appeared on behalf of the Bureau of Education, legatee in this proceeding, and as grounds of his motion, alleges that the Director of Education had not been notified of the petition of the administrator, praying for authorization to exchange lot No. 3780 of the estate with lot No. 3554 of Jose Jaranilla; and in support of his contention, he cites section 714 of the Code of Civil Procedure and the case of Buenaventura v. Ramos, Official Gazette of December 9, 1922.
"Section 714 really provides that to the petition of the administrator there must be attached the consent of the heirs, legatees, and other persons interested; but section 722 of the same Code, which prescribes the procedure to be followed in the granting of authority to sell, requires in paragraph 3 the publication of the petition of the administrator in a newspaper for three consecutive weeks, which publication may be dispensed with if the parties interested are personally notified of the petition of the administrator.
"In this proceeding the administrator filed his petition on October 23, 1922, and as no notice thereof was given to the heirs and interested parties, the court ordered the publication of said petition the newspaper El Adalid. The order of the court for the publication was issued October 25, 1922, and the petition was set for hearing on December 2 of the same year. On the day fixed for the hearing, December 2, 1922, the trial court after hearing the administrator and Jose Jaranilla, the owner of the land to be exchanged, granted the petition, authorizing the exchange of lot No. 3780 of the estate with lot No. 3554 of Jose Jaranilla.
"In granting this authority to make the exchange, the court took into account the benefit alledge by the administrator that was to inure to the estate. This benefit consists in that the lot or land of Mr. Jaranilla is in a commercial center and may be worth one hundred thousand pesos (P100,000), citing as a proof thereof page 97 of the record, where lot No. 3548-A appears to have been sold by the deceased Mr. Esteban Jalandoni to Catton-Neill & Co., Ltd., for the price of six pesos (P6) a square meter; and this lot No. 3548, of which lot 3548-A sold to the Catton-Neill & Co., Ltd., is part, is adjacent to lot No. 3554 of Mr. Jose Jaranilla.
"Another benefit alleged is that lot No. 3554 of Mr. Jaranilla is adjoining the lands of the deceased where the schoolhouses are built, while lot No. 3780 of the estate is an isolated parcel and is far away from the other parcels belonging to the deceased. An examination of the sketch made by a surveyor of the Bureau of Lands, presented by counsel for Jose Jaranilla in support of his opposition, shows that this allegation is true. In this sketch the portion the land sold to Catton-Neill & Co., Ltd., can be clearly seen, as well as lot No 3554 of Mr. Jose Jaranilla, which is adjacent to the large portion not sold of lot 3548 of the deceased, and on this lot No. 3548 the schoolhouse of the deceased, Esteban Jalandoni, is built.
"Attached to the sketch, there also appears a certificate signed by the surveyor Mr. roman Ciliran, stating that lot No. 3780 of the estate is seven hundred meters from lot NO. 3548 where the school building of the deceased is erected, and that lot No. 3554 is bounded on the western side by lot No. 3548.
"Another ground alleged by the administrator was the contract or verbal promise to exchange said lots made in the lifetime of the deceased, and which was not carried out on account of his death, which fact was admitted by the administrator at the hearing of the motion.
"In view of the object of the deceased in giving the rest of his estate to the Bureau of Education which is for the building of a schoolhouse on the lands devised specially in the municipality of La Paz, the court believes the school erected by the deceased is built for another one pertaining to the estate, but which is far away from the place where the school is built, serves the purpose of the deceased in making the legacy in favor of the bureau of Education, aside from the commercial value of the land of Mr. Jaranilla, lot No. 3554, offered to be exchanged with lot No. 3780 of the estate.
"On folio 271 of the record os the land tax receipt issued in the name of Jose Jaranilla in the year 1923 for the lot exchanged with a land of the estate; and in this receipt it appears that the land of Mr. Jose Jaranilla was assessed at eight hundred forty pesos (P840). This land of Mr. Jaranilla contains sixteen thousand eight hundred twenty-two square meters, and judging from the adjoining land of the deceased Esteban Jalandoni sold to the Catton-Neill & Co., Ltd., at six pesos (P6) a square meter, the land of Mr. Jalandoni may be worth of P100,932, appraising it at P6 a square meter; but even supposing that it is not worth six pesos a square meter, but only P3, even then its total value would be more than P50,000.
"On the other hand, the land in Tabucan Viejo, which is lot No. 3780, according to the tax receipt on folio 191 of the record, is actually assessed at P1,590 and in their report, page 111 of the record, the commissioners increased the value of lot No. 3780, fixing it at P3,400.
"Besides this material or economical advantage, which is great, they have taken into account the benefit to be derived from this exchange in connection with the purpose for which the legacy was made to the Bureau of Education. Lot No. 3554 of Mr. Jaranilla would serve this purpose letter and more adequately that if the Bureau of Education should take lot No. 3780 which is far from lot No. 3548 where the schoolhouse built by the deceased in his lifetime is.
"The Attorney-General says that the exchange authorized by the court violate the provision of clause 5 of the will that no land should be sold or transferred except for public use. The exchange authorized by the court met this condition, inasmuch as it was beneficial to the schoolhouse built on lot No. 3548 adjoining the aforesaid lot No. 3548, and this the reason why the proposed exchange of lot No. 3554 was accepted.
"The case cited by the Attorney-General has no application here. In Buenaventura v. Ramos the heirs of the deceased Buenaventura opposed the petition of the administrator for authority to sell a fishery pertaining to the deceased Buenaventura, and the court denied said petition; but the administrator having renewed his petition, the court granted it and gave him authority to sell the fishery as requested by the administrator, in spite of the opposition presented by the heirs. This order of the court was reverse by the Honorable Supreme Court on the ground that the executor or administrator of the estate of the deceased has no power to sell any real property, when there are no debts or obligations against the estate, without the consent and approval in writing of the heirs interested in the property to be sold, because the heirs become the owners of the property as soon as their ascendant dies, and cannot be deprived thereof except in the manner provided by the law, and through legal proceedings. The doctrine above cited has therefore, no application on the case now before us.
"In this proceeding the Bureau of Education is not an heir of the estate of the deceased Esteban Jalandoni. The latter, in paragraph 2 of his will probated in this proceeding, makes a specific legacy to the Bureau of Education of the personal and real property mentioned in said paragraph. Under the decision rendered in the case of Buenaventura v. Ramos, the heirs become the owners of the estate as soon as their ascendant does; but legatee does not acquire the legal status of an owner until the legacy is awarded to him.
"With reference to legacies, the law provides that in default of the property bequeathed, the heir may comply with the will by delivering to the legatee a thing identical to the one given that might have been lost.
"As a last ground, the Attorney-General alleges that the exchange made by the administrator is not beneficial to the legatee or the estate.
"The benefit obtained by the estate or the Bureau of Education as legatee is shown by the fact that the land of Mr. Jaranilla, that was exchanged, has a commercial value which is estimated at P6 a square meter, this being the price of the adjoining land sold to the Catton—Neill & Co., Ltd., which price lot No. 3780 does not, and cannot, bring, being seven hundred meters from lot No. 3548 where the schoolhouse of the deceased is built.
"Another benefit derived by the estate or the Bureau of Education as legatee from the acquisition of lot No. 3554 consists in that it is adjacent to lot No. 3548 donated by the decease to the Bureau of Education for educational purposes and on which a schoolhouse is erected.
"The court does not believe it necessary to take a long discussion in order to show that a land, such as lot No. 3554, adjoining the lands donated by the deceased Esteban Jalandoni to the Bureau of Education for educational purposes, is more beneficial to said Bureau than lot No. 3780, which is far away from these lands, specially from lot No. 3548 where the school stands.
"The purpose for which this specific legacy was given to the Bureau of Education, which is ’a legacy exclusively for school purposes,’ in the language used by the testator in his will, is accomplished and not violated by the court in authorizing the exchange of lot No. 3554 of Mr. Jaranilla with lot No. 3780 of the estate, the former being adjacent to the land donated, to be used as school site, and on which the school is erected, and the latter lot being far from the aforesaid lands.
"For all of the foregoing, the court denies the motion of the Attorney-General.
"So ordered."cralaw virtua1aw library
From the foregoing order the Attorney-General appealed in behalf of the Bureau of Education, and now alleges that the lower court erred in the exercise of its powers in authorizing the administrator of the estate of Esteban Jalandoni to exchange lot No. 3780 of the cadaster of Iloilo, described in original certificate of title 15154 issued by the register of deeds of the Province of Iloilo, in the name of Esteban Jalandoni, with lot No. 3554 of said cadaster, described in original certificate of title No. 15354 issued by the same register of deeds, that is, the lot of Jose Jaranilla without having given a personal notice of the motion of the administrator to the Bureau of Education of the Government of the Philippine Islands, the successor in interest of the deceased Esteban Jalandoni in said lot No. 3780, or to the school superintendent of the Province of Iloilo, the representative of said Bureau of Education in that province, and without first obtaining the consent in writing of said Bureau of Education. He also alleges as a ground of the appeal the fact of the lower court having denied the motion of the appellant date November 22, 1923, filed on behalf of the Bureau of Education of the Government of the Philippine Islands in this special proceeding.
The question at issue in this appeal is whether or not the probate court has authority to give permission to the administrator to sell the whole said sale appears to be beneficial to the heirs, donees, or legatees, without their consent.
This question has already decided in the negative by this court in the case of Buenaventura and Del Rosario v. Ramos (43 Phil., 704), wherein the following doctrine was laid down:jgc:chanrobles.com.ph
"The executor or administrator of the estate of a deceased person is without authority to sell real estate, when there are no debts or obligations existing against the estate, without the consent and approbation, in writing, of the heirs who are interested in the estate to be sold."cralaw virtua1aw library
Section 714 and 718 of the Code of Civil Procedure, invoked in the judgment appealed from, provided:jgc:chanrobles.com.ph
"SEC. 714. Realty may be sold or encumbered though personality not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts and charges of administration without injuring the business of those interested in the estate, or otherwise prejudicing their interests, and where a testator has not otherwise made sufficient provision for the payment of such debts and charges, the court, on application of the executor or administrator with the consent and approbation, in writing, of the heirs, devisees, and legatees, residing in the Philippine Islands, may grant a license to the executor or administrator to sell, mortgage, or otherwise encumber for that purpose real, in lieu of personal estate, if it clearly appears that such sale, mortgaging or encumbrance of real estate would be beneficial to the persons interested and will not defeat any devise of land; in which case the asset of the devisee shall be required."cralaw virtua1aw library
"SEC. 718. Estate may be sold when beneficial to heirs. — When it appears to the court that it will be beneficial to the heirs, devisees, or legatees, and those interested in an estate, by reason of their residing out of the Islands or otherwise, that a part or the whole of the personal estate, or a part or whole of the real estate, or both the real and personal estate, or both the real and personal estate, should be sold, the court may, upon application of the administrator or executor, with the consent and approbation, in writing, of the heirs, devisees, and legatees who are interest in the estate to be sold, grant license to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or charges of administration; but such license shall not be granted is inconsistent with the provisions of a will. In case of such sale, the proceeds shall be decreed and assigned to the persons entitled to the estate, and in the same proportion."cralaw virtua1aw library
As may be seen, the lower court may, upon the petition of the administrator, authorize the sale of, or the creating of an encumbrance upon, real property, even though there may be personal property sufficient prejudice to the interest of the persons entitled to share in the inheritance (sec. 714). The court may likewise authorized the sale of any personal or real property of the estate upon the petition of the administrator, although it may not be necessary for the payments of debts, legacies, or charges of administration, when said sale appears to be beneficial to the heirs, donees, or legatees and other persons interested in the inheritance on account of their absence from the Philippine Islands or for any other cause (sec. 718). But in either case the law requires the consent in writing of the heirs, donees and legatees and other persons interested in the inheritance. And so section 722 which prescribes the rules to be observed in the giving of permission to make the sale requires that in cases where the consent of the heirs, donees and legatees is necessary, the executor or administrator shall show to the court said consent in writing signed by them or their guardians if minors or under guardianship. Not only the convenience or advantage of the sale must the court take into consideration in order that it may authorize said sale; but it must consider chiefly the consent in writing of the heirs, who are the persons entitled to the property sought to be sold, and cannot be deprived thereof without due process of law.
And what is said of sale, may be applied to exchange, since in law the exchange of real property is but a sale, in which the contracting parties agree that the price be represented reciprocally by the properties exchanged.
For the foregoing, the order appealed from is reversed and it is hereby declared that the order of December 22, 1922, authorizing the exchange in question is void, as well as the document of exchange executed by virtue of said order, without special pronouncement as to costs. So ordered.
Johnson, Malcolm, Ostrand, Johns, and Romualdez, JJ., concur.
"On 27th of November, last, a motion was filed in this proceeding by the Attorney-General, praying for the issuance of an order declaring the illegality and invalidity of the deed of transfer of December 6, 1922, executed by the judicial administrator, as well as of the order dated December 2, 1922, authorizing said transfer.
"On the 7th of this month, counsel from Jose Jaranilla filed an opposition to the motion of the Attorney-General.
"The Attorney-General appeared on behalf of the Bureau of Education, legatee in this proceeding, and as grounds of his motion, alleges that the Director of Education had not been notified of the petition of the administrator, praying for authorization to exchange lot No. 3780 of the estate with lot No. 3554 of Jose Jaranilla; and in support of his contention, he cites section 714 of the Code of Civil Procedure and the case of Buenaventura v. Ramos, Official Gazette of December 9, 1922.
"Section 714 really provides that to the petition of the administrator there must be attached the consent of the heirs, legatees, and other persons interested; but section 722 of the same Code, which prescribes the procedure to be followed in the granting of authority to sell, requires in paragraph 3 the publication of the petition of the administrator in a newspaper for three consecutive weeks, which publication may be dispensed with if the parties interested are personally notified of the petition of the administrator.
"In this proceeding the administrator filed his petition on October 23, 1922, and as no notice thereof was given to the heirs and interested parties, the court ordered the publication of said petition the newspaper El Adalid. The order of the court for the publication was issued October 25, 1922, and the petition was set for hearing on December 2 of the same year. On the day fixed for the hearing, December 2, 1922, the trial court after hearing the administrator and Jose Jaranilla, the owner of the land to be exchanged, granted the petition, authorizing the exchange of lot No. 3780 of the estate with lot No. 3554 of Jose Jaranilla.
"In granting this authority to make the exchange, the court took into account the benefit alledge by the administrator that was to inure to the estate. This benefit consists in that the lot or land of Mr. Jaranilla is in a commercial center and may be worth one hundred thousand pesos (P100,000), citing as a proof thereof page 97 of the record, where lot No. 3548-A appears to have been sold by the deceased Mr. Esteban Jalandoni to Catton-Neill & Co., Ltd., for the price of six pesos (P6) a square meter; and this lot No. 3548, of which lot 3548-A sold to the Catton-Neill & Co., Ltd., is part, is adjacent to lot No. 3554 of Mr. Jose Jaranilla.
"Another benefit alleged is that lot No. 3554 of Mr. Jaranilla is adjoining the lands of the deceased where the schoolhouses are built, while lot No. 3780 of the estate is an isolated parcel and is far away from the other parcels belonging to the deceased. An examination of the sketch made by a surveyor of the Bureau of Lands, presented by counsel for Jose Jaranilla in support of his opposition, shows that this allegation is true. In this sketch the portion the land sold to Catton-Neill & Co., Ltd., can be clearly seen, as well as lot No 3554 of Mr. Jose Jaranilla, which is adjacent to the large portion not sold of lot 3548 of the deceased, and on this lot No. 3548 the schoolhouse of the deceased, Esteban Jalandoni, is built.
"Attached to the sketch, there also appears a certificate signed by the surveyor Mr. roman Ciliran, stating that lot No. 3780 of the estate is seven hundred meters from lot NO. 3548 where the school building of the deceased is erected, and that lot No. 3554 is bounded on the western side by lot No. 3548.
"Another ground alleged by the administrator was the contract or verbal promise to exchange said lots made in the lifetime of the deceased, and which was not carried out on account of his death, which fact was admitted by the administrator at the hearing of the motion.
"In view of the object of the deceased in giving the rest of his estate to the Bureau of Education which is for the building of a schoolhouse on the lands devised specially in the municipality of La Paz, the court believes the school erected by the deceased is built for another one pertaining to the estate, but which is far away from the place where the school is built, serves the purpose of the deceased in making the legacy in favor of the bureau of Education, aside from the commercial value of the land of Mr. Jaranilla, lot No. 3554, offered to be exchanged with lot No. 3780 of the estate.
"On folio 271 of the record os the land tax receipt issued in the name of Jose Jaranilla in the year 1923 for the lot exchanged with a land of the estate; and in this receipt it appears that the land of Mr. Jose Jaranilla was assessed at eight hundred forty pesos (P840). This land of Mr. Jaranilla contains sixteen thousand eight hundred twenty-two square meters, and judging from the adjoining land of the deceased Esteban Jalandoni sold to the Catton-Neill & Co., Ltd., at six pesos (P6) a square meter, the land of Mr. Jalandoni may be worth of P100,932, appraising it at P6 a square meter; but even supposing that it is not worth six pesos a square meter, but only P3, even then its total value would be more than P50,000.
"On the other hand, the land in Tabucan Viejo, which is lot No. 3780, according to the tax receipt on folio 191 of the record, is actually assessed at P1,590 and in their report, page 111 of the record, the commissioners increased the value of lot No. 3780, fixing it at P3,400.
"Besides this material or economical advantage, which is great, they have taken into account the benefit to be derived from this exchange in connection with the purpose for which the legacy was made to the Bureau of Education. Lot No. 3554 of Mr. Jaranilla would serve this purpose letter and more adequately that if the Bureau of Education should take lot No. 3780 which is far from lot No. 3548 where the schoolhouse built by the deceased in his lifetime is.
"The Attorney-General says that the exchange authorized by the court violate the provision of clause 5 of the will that no land should be sold or transferred except for public use. The exchange authorized by the court met this condition, inasmuch as it was beneficial to the schoolhouse built on lot No. 3548 adjoining the aforesaid lot No. 3548, and this the reason why the proposed exchange of lot No. 3554 was accepted.
"The case cited by the Attorney-General has no application here. In Buenaventura v. Ramos the heirs of the deceased Buenaventura opposed the petition of the administrator for authority to sell a fishery pertaining to the deceased Buenaventura, and the court denied said petition; but the administrator having renewed his petition, the court granted it and gave him authority to sell the fishery as requested by the administrator, in spite of the opposition presented by the heirs. This order of the court was reverse by the Honorable Supreme Court on the ground that the executor or administrator of the estate of the deceased has no power to sell any real property, when there are no debts or obligations against the estate, without the consent and approval in writing of the heirs interested in the property to be sold, because the heirs become the owners of the property as soon as their ascendant dies, and cannot be deprived thereof except in the manner provided by the law, and through legal proceedings. The doctrine above cited has therefore, no application on the case now before us.
"In this proceeding the Bureau of Education is not an heir of the estate of the deceased Esteban Jalandoni. The latter, in paragraph 2 of his will probated in this proceeding, makes a specific legacy to the Bureau of Education of the personal and real property mentioned in said paragraph. Under the decision rendered in the case of Buenaventura v. Ramos, the heirs become the owners of the estate as soon as their ascendant does; but legatee does not acquire the legal status of an owner until the legacy is awarded to him.
"With reference to legacies, the law provides that in default of the property bequeathed, the heir may comply with the will by delivering to the legatee a thing identical to the one given that might have been lost.
"As a last ground, the Attorney-General alleges that the exchange made by the administrator is not beneficial to the legatee or the estate.
"The benefit obtained by the estate or the Bureau of Education as legatee is shown by the fact that the land of Mr. Jaranilla, that was exchanged, has a commercial value which is estimated at P6 a square meter, this being the price of the adjoining land sold to the Catton—Neill & Co., Ltd., which price lot No. 3780 does not, and cannot, bring, being seven hundred meters from lot No. 3548 where the schoolhouse of the deceased is built.
"Another benefit derived by the estate or the Bureau of Education as legatee from the acquisition of lot No. 3554 consists in that it is adjacent to lot No. 3548 donated by the decease to the Bureau of Education for educational purposes and on which a schoolhouse is erected.
"The court does not believe it necessary to take a long discussion in order to show that a land, such as lot No. 3554, adjoining the lands donated by the deceased Esteban Jalandoni to the Bureau of Education for educational purposes, is more beneficial to said Bureau than lot No. 3780, which is far away from these lands, specially from lot No. 3548 where the school stands.
"The purpose for which this specific legacy was given to the Bureau of Education, which is ’a legacy exclusively for school purposes,’ in the language used by the testator in his will, is accomplished and not violated by the court in authorizing the exchange of lot No. 3554 of Mr. Jaranilla with lot No. 3780 of the estate, the former being adjacent to the land donated, to be used as school site, and on which the school is erected, and the latter lot being far from the aforesaid lands.
"For all of the foregoing, the court denies the motion of the Attorney-General.
"So ordered."cralaw virtua1aw library
From the foregoing order the Attorney-General appealed in behalf of the Bureau of Education, and now alleges that the lower court erred in the exercise of its powers in authorizing the administrator of the estate of Esteban Jalandoni to exchange lot No. 3780 of the cadaster of Iloilo, described in original certificate of title 15154 issued by the register of deeds of the Province of Iloilo, in the name of Esteban Jalandoni, with lot No. 3554 of said cadaster, described in original certificate of title No. 15354 issued by the same register of deeds, that is, the lot of Jose Jaranilla without having given a personal notice of the motion of the administrator to the Bureau of Education of the Government of the Philippine Islands, the successor in interest of the deceased Esteban Jalandoni in said lot No. 3780, or to the school superintendent of the Province of Iloilo, the representative of said Bureau of Education in that province, and without first obtaining the consent in writing of said Bureau of Education. He also alleges as a ground of the appeal the fact of the lower court having denied the motion of the appellant date November 22, 1923, filed on behalf of the Bureau of Education of the Government of the Philippine Islands in this special proceeding.
The question at issue in this appeal is whether or not the probate court has authority to give permission to the administrator to sell the whole said sale appears to be beneficial to the heirs, donees, or legatees, without their consent.
This question has already decided in the negative by this court in the case of Buenaventura and Del Rosario v. Ramos (43 Phil., 704), wherein the following doctrine was laid down:jgc:chanrobles.com.ph
"The executor or administrator of the estate of a deceased person is without authority to sell real estate, when there are no debts or obligations existing against the estate, without the consent and approbation, in writing, of the heirs who are interested in the estate to be sold."cralaw virtua1aw library
Section 714 and 718 of the Code of Civil Procedure, invoked in the judgment appealed from, provided:jgc:chanrobles.com.ph
"SEC. 714. Realty may be sold or encumbered though personality not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts and charges of administration without injuring the business of those interested in the estate, or otherwise prejudicing their interests, and where a testator has not otherwise made sufficient provision for the payment of such debts and charges, the court, on application of the executor or administrator with the consent and approbation, in writing, of the heirs, devisees, and legatees, residing in the Philippine Islands, may grant a license to the executor or administrator to sell, mortgage, or otherwise encumber for that purpose real, in lieu of personal estate, if it clearly appears that such sale, mortgaging or encumbrance of real estate would be beneficial to the persons interested and will not defeat any devise of land; in which case the asset of the devisee shall be required."cralaw virtua1aw library
"SEC. 718. Estate may be sold when beneficial to heirs. — When it appears to the court that it will be beneficial to the heirs, devisees, or legatees, and those interested in an estate, by reason of their residing out of the Islands or otherwise, that a part or the whole of the personal estate, or a part or whole of the real estate, or both the real and personal estate, or both the real and personal estate, should be sold, the court may, upon application of the administrator or executor, with the consent and approbation, in writing, of the heirs, devisees, and legatees who are interest in the estate to be sold, grant license to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or charges of administration; but such license shall not be granted is inconsistent with the provisions of a will. In case of such sale, the proceeds shall be decreed and assigned to the persons entitled to the estate, and in the same proportion."cralaw virtua1aw library
As may be seen, the lower court may, upon the petition of the administrator, authorize the sale of, or the creating of an encumbrance upon, real property, even though there may be personal property sufficient prejudice to the interest of the persons entitled to share in the inheritance (sec. 714). The court may likewise authorized the sale of any personal or real property of the estate upon the petition of the administrator, although it may not be necessary for the payments of debts, legacies, or charges of administration, when said sale appears to be beneficial to the heirs, donees, or legatees and other persons interested in the inheritance on account of their absence from the Philippine Islands or for any other cause (sec. 718). But in either case the law requires the consent in writing of the heirs, donees and legatees and other persons interested in the inheritance. And so section 722 which prescribes the rules to be observed in the giving of permission to make the sale requires that in cases where the consent of the heirs, donees and legatees is necessary, the executor or administrator shall show to the court said consent in writing signed by them or their guardians if minors or under guardianship. Not only the convenience or advantage of the sale must the court take into consideration in order that it may authorize said sale; but it must consider chiefly the consent in writing of the heirs, who are the persons entitled to the property sought to be sold, and cannot be deprived thereof without due process of law.
And what is said of sale, may be applied to exchange, since in law the exchange of real property is but a sale, in which the contracting parties agree that the price be represented reciprocally by the properties exchanged.
For the foregoing, the order appealed from is reversed and it is hereby declared that the order of December 22, 1922, authorizing the exchange in question is void, as well as the document of exchange executed by virtue of said order, without special pronouncement as to costs. So ordered.
Johnson, Malcolm, Ostrand, Johns, and Romualdez, JJ., concur.
