I. ENRIQUE M. PASNO, petitioner and appellee, v. FORTUNATA
RAVINA and PONCIANO RAVINA, oppositors and appellants.
Validity of Gabina Labitoria’s will.
As the stenographic notes have not been written up and elevated to this court, any discussion of the evidence is rendered impossible. The single question to be decided is whether the admitted fact that the will was executed on July 27, 1928, although stating that it was executed on February 6, 1926, invalidates the will. As said by the trial judge, the reason for the error was on account of the will being in great part a reproduction of another will of February 6, 1926, and inadvertently retaining this date.
Section 618, as amended, of the Code of Civil Procedure prescribes the requisites necessary to the execution of a valid will. The law does not requisites necessary to the execution of a valid will. The law does not require that the will shall be dated. Accordingly, a will without a date is valid. So likewise an erroneous date will not defeat a will. (Wright v. Wright [1854], 5 Ind., 389; Peace v. Edwards [1915], 170 N. C. 64; Ann. Cas. 1918-A, 778; L. R. A. 1916-E, 501 note.)
It results that the trial judge was right in admitting the will of Gabina Labitoria to probate.
II. ENRIQUE M. PASNO, petitioner and appellee, v. PHILIPPINE
NATIONAL BANK, Appellant. Right of the mortgagee, the Philippine
National Bank, to foreclose the mortgage in its favor executed by
Gabina Labitoria during her lifetime now that the mortgaged property
is in the hands of an administrator.
The facts are not in dispute. Gabina Labitoria during her lifetime mortgaged three parcels of land to the Philippine National Bank to secure an indebtedness of P1,600. It was stipulated in the mortgage, among other things, that the mortgagee "may remove, sell or dispose of the mortgaged property or any buildings, improvements or other property in, on or attached to it and belonging to the mortgagor in accordance with the provisions of Act No. 3135 or take other legal action that it may deem necessary." The mortgagor died, and a petition was presented in court for the probate of her last will and testament. During the pendency of these proceedings, a special administrator was appointed by the lower court who took possession of the estate of the deceased, including the three parcels of land mortgaged to the Philippine National Bank. The estate having failed to comply with the conditions of the mortgage, the Philippine National Bank, pursuant to the stipulations contained in the same, asked the sheriff of Tayabas to proceed with the sale of the parcels of land. When the attorney for the special administrator received notice of the proposed action, he filed a motion in court in which an order was asked requiring the sheriff to vacate the attachment over the mortgaged properties and to abstain from selling the same. The lower court granted the petition in an order of February 14, 1929, and later denied a motion for reconsideration presented on behalf of the Philippine National Bank.
The mortgage makes special reference to Act No. 3135. That Act is one to regulate the sale of property under special powers inserted in or annexed to real-estate mortgages. It fails to make provision regarding the sale of mortgaged property which is in custodia legis. Under these circumstances, it would be logical to suppose that the general provisions of Philippine law would govern this latter contingency. It is a familiar rule that statutes in pari materia are to be read together. The legislative body which enacted Act No. 3135 must be presumed to have been acquainted with the provisions of such a well known law as the Code of Civil Procedure and to have passed Act No. 3135 with reference thereto.
The appellant practically concedes that the law applicable to the case is section 708 of the Code of Civil Procedure. The cited section reads: "A creditor holding a claim against the deceased, secured by mortgage or other collateral security, may abandon the security and prosecute his claim before the committee, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by ordinary action in court, making the executor or administrator a party defendant; and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may prove his deficiency judgment before the committee against the estate of the deceased; or he may rely upon his mortgage or other security alone, and foreclose the same at any time, within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of the estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made." In this connection, it is to be noted that the law provides two remedies (Osorio v. San Agustin [1913], 25 Phil., 404). The creditor here is not taking advantage of the first remedy for the mortgage security has not been abandoned. Rather is the second remedy invoked but until now unsuccessfully since the mortgagee has not begun an ordinary action in court to foreclose the mortgage making the special administrator a party defendant.
The power of sale given in a mortgage is a power coupled with an interest which survives the death of the grantor. One case, that of Carter v. Slocomb ([1898], 122 N. C., 475), has gone so far as to hold that a sale after the death of the mortgagor is valid without notice to the heirs of the mortgagor. However that may be, conceding that the power of sale is not revoked by the death of the mortgagor, nevertheless in view of the silence of Act No. 3135 and in view of what is found in section 708 of the Code of Civil Procedure, it would be preferable to reach the conclusion that the mortgagee with a power of sale should be made to foreclose the mortgage in conformity with the procedure pointed out in section 708 of the Code of Civil Procedure. That would safeguard the interests of the estate by putting the estate on notice while it would not jeopardize any rights of the mortgagee. The only result is to suspend temporarily the power to sell so as not to interfere with the orderly administration of the estate of a decedent. A contrary holding would be inconsistent with the portion of our law governing the settlement of estates of deceased persons.
It results that the trial judge committed no error in sustaining the petition of the administrator of the estate of the deceased Gabina Labitoria and in denying the motion of the Philippine National Bank.
Agreeable to the foregoing pronouncements, the judgment and orders appealed from will be affirmed, with one-half of the costs of this instance against the oppositors and appellants Fortunata Ravina and Ponciano Ravina, and the other half of the costs of this instance against the Philippine National Bank.
Johnson, Johns, Romualdez and Villa-Real, JJ., concur.