1. EXECUTORS AND ADMINISTRATORS; ESTATES OF DECEASED PERSONS; ATTORNEY’S FEES. — The estate of a deceased person cannot be held liable for the costs of counsel fees arising out of litigation between the beneficiaries thereof among themselves or in the protection of the interests of particular persons (Woerner on Administration, 2d ed., sec. 516), but an administrator may employ competent counsel on questions which affect his duties as administrator and on which he is in reasonable doubt, and reasonable expenses for such services may be charged against the estate subject to the approval of the court.

2. ID.; ID.; ID. — An administrator who brings on litigation for the deliberate purpose of defrauding the legitimate heirs and for his own benefits is not entitled to reimbursement for counsel fees incurred in such litigation.

3. ID.; ID.; CONSERVATION OF PROPERTY; ADMINISTRATOR’S COMPENSATION FOR SERVICES. — Where an administrator is acting as such for his own benefit and not for that of the estate, he is in a position analogous to that of bailee for his own sole benefit and is bound to exercise great care and attention in the conservation of the property under administrator and will be held liable for losses. per diem compensation of an administrator can only be allowed for necessary services, and where the prolongation of the settlement of the estate is due entirely to the efforts of the administrator to defraud the heirs, he is not entitled to compensation for the services rendered in connection therewith.

This is an old probate case which could and should have been terminated over twenty years ago. The following facts appear from the now very voluminous record:chanrob1es virtual 1aw library

Justiniano Rogero Dacanay died in Bacnotan, La Union, on May 14, 1905. He left only one legitimate child, Bienvenida Julia Dacanay, the issue of his marriage to Maria Ronquillo, who died in or about the year 1875. In addition to the aforesaid legitimate child, he also left three acknowledged natural children, Hermenegilda, Tirso, and Paulina Dacanay. Bienvenida married Silverio Hernandez in the year 1886 and died on September 18, 1907, leaving three children, Eduvigis, Caridad, and Maria. Hermenegilda Dacanay died in 1919, being survived by her husband, Gelasio Belmonte, and her children, Florencio, Eduvigis, Maria, Isabelo, and Celestino Belmonte.

The deceased Justiniano Dacanay also left a will executed on September 1, 1904, and in which Tirso Dacanay was named executor. It greatly favored the natural children at the expense of Bienvenida, the testator stating that she had been disobedient and that he therefore felt justified in curtailing her inheritance. The will was presented for probate shortly after the death of Justiniano and, notwithstanding the opposition of Bienvenida Dacanay, was duly probated on April 24, 1906. Tirso Dacanay immediately qualified as administrator and on March 4, 1907, Angel Lopez, Casimiro Carbonel, and Liberato Buccat were appointed commissioners on claims and appraisal. The commissioners prepared and filed a final report in due time, but no further steps were taken towards settlement of the estate until March 19, 1913, when Judge W. E. McMahon, then presiding over the Court of First Instance of La Union, appointed Sixto Dacanay, Casimiro Carbonel, and Liberato Buccat commissioners for the partition of the estate among the heirs. On May 3d, 1913, these commissioners submitted a scheme of partition in which the provisions of the will were closely followed while the law governing succession appears to have been disregarded. Silverio Hernandez, in representation of his deceased wife and his children, opposed the approval of the scheme of partition, principally on the ground that the portions of the estate assigned to the natural children greatly exceeded the maximum shares allowed them as acknowledged natural children by articles 806, 808, 840, et seq. of the Civil Code and correspondingly diminished the legitimate shares of the children of Bienvenida. Upon hearing, Judge McMahon rendered a decision in which he among other things said:jgc:chanrobles.com.ph

"From an examination of the will itself, it results that the legitimate child Bienvenida Dacanay only received a part of the estate left her mother by the deceased parents of the mother and none of the property afterwards acquired by the testator, and the testator attempts to dispose of the property received from the parents of his deceased wife Maria Ronquillo as fit were his own property, giving a part thereof to the recognized natural children. From the examination of the partition made by the commissioners, it is evident that they made no attempt to discover what was the dowry and paraphernalia property of the deceased Maria Ronquillo, if any, nor to determine what was the separate property of each of the husband and wife Justiniano Rogero Dacanay and Maria Ronquillo, if any, and later the ’gananciales’ or joint property of both husband and wife, but merely attempted to follow out the provisions of the will, when it is evident that the will has not followed the provisions of the law, and in so far as it has not conformed to the law, should be disregarded. For these reasons the court disapproves the partition made by the commissioners dated the 13th of May, 1913, and orders that they proceed to make a new partition of the property left by the deceased Justiniano Rogero Dacanay in conformity with the law in such cases provided, and once having made this they will submit their report at the earlier opportunity to the Court of First Instance of La Union for its approval."cralaw virtua1aw library

No further action seems to have been taken by the commissioners, but on July 8, 1915, the executor, Tirso Dacanay, presented a plan for the partition of the estate. Another scheme of partition was submitted by Silverio Hernandez on January 21, 1916. Both of the plans submitted were unsatisfactory of the court, but on September 23, 1916, Judge Manuel Camus, who in the meantime had been appointed judge of the district, rendered a carefully prepared decision in which he among other things provided for a complete and apparently fair distribution of the estate based upon the evidence contained in the record.

On October 3, 1916, Tirso Dacanay filed a motion for a new trial on the ground that the decision was contrary to the evidence and to the law. The motion was denied, and on January 27, 1917, he filed an exception to the order denying the motion and announced his intention of appealing to the Supreme Court. The appeal was duly perfected and the case was docketed in the office of the clerk of the Supreme Court under the number G. R. No. 12662, but on February 23, 1917, Dacanay filed a motion for the reopening of the case on the ground that after the record of the case had been transmitted to the Supreme Court, he had discovered new evidence consisting in an inventory of property alleged to have been donated to Bienvenida Julia Dacanay on the occasion of her marriage in July, 1886. On March 22, 1917, the Supreme Court granted the motion, set aside Judge Camus’ decision, and ordered the case remanded to the Court of First Instance for additional proof. 1 Considerable evidence was taken in regard to the authenticity of the inventory alleged to have been newly discovered, and on August 11, 1919, Judge J. R. Burgett, then Judge of the Court of First Instance of La Union, rendered a decision in which he found that the aforesaid inventory, marked Exhibit A-1, was genuine and directed the commissioners of partition appointed in 1913 to submit a new scheme of partition of all the property belonging to the estate of Justiniano Dacanay, including by collation the property described and referred to in the document Exhibit A-1. His Honor further directed said commissioners to be careful to follow the instructions set forth in Judge McMahon’s decision of August 14, 1914, and also the rulings, findings, and conclusions of Judge Camus in his decision were "not contrary to the present decision." From this decision Silverio Hernandez appealed to this court, but on January 15, 1920, the appeal was dismissed on the ground that it was premature in so far a the appellant should have awaited the termination of the partition of the property of the estate. 1

The record was again remanded to the Court of First Instance, and the aforesaid commissioners submitted another scheme of partition which was opposed by Silverio Hernandez and set for hearing on January 15, 1921. The plan followed by the commissioners having been found unsatisfactory, the parties on the same date and in open court entered into stipulation which reads as follows in translation:jgc:chanrobles.com.ph

"STIPULATION IN OPEN COURT

"BLANCO. The parties agree and stipulate:jgc:chanrobles.com.ph

"First. That the administrator be ordered to immediately present to the court a new inventory of all the properties of the estate in the same order in which they appear in the inventory attached to the will, including in said inventory the properties referred to in the dowry letter Exhibit A-1, without prejudice to the allegation of the attorney for Silverio Hernandez relative to the validity of said donation; and, showing in said inventory the value given the properties, according to the valuation shown on folios 174-188, except so far as concerns the property said to have been donated to Bienvenida Dacanay, according to Exhibit A-1, and the property said to have been donated to Tirso Dacanay during their father’s lifetime, according to the deed of donation on folio 303, which should be given the value they had at the time said donations were made; provided that said new inventory must exclude the properties which, according to the administrator, were destroyed by a fire which occurred in the town of Bacnotan, as per statement on folio 165.

"Second. That the administrator be ordered to immediately file a scheme of partition of all of said properties, giving the origin of each and everyone of them, the names of each and everyone of the heirs of the deceased interested therein; the products of the properties said to be collationable, from the date of the institution of these proceedings, that is, from May 19, 1905, without prejudice to the allegations of the parties relative to the validity of the donation Exhibit A-1, and the collationable character of said properties, and the proportion in which the heirs of the deceased Justiniano Rogero Dacanay have the right to participate.

"Third. That the administrator present to the court a final account of his administration of the properties of this estate, together with the general inventory and the scheme of partition.

"Fourth. That in view of this stipulation, the scheme of partition presented by the commissioners is set aside.

"Fifth. That nothing stipulated by Silverio Hernandez relative to Exhibit A-1 shall affect the allegations made by his counsel prior to these proceedings relative to the nullity of said donation propter nuptias.

"Sixth. That said Silverio Hernandez be acknowledged and considered to be the duly appointed guardian of his minor daughter Maria Hernandez y Dacanay, without prejudice to a certified copy of his appointment as such guardian being attached to the record of this proceeding.

"Seventh. That Eduvigis and Caridad Hernandez y Dacanay, children and heirs of the deceased Bienvenida Dacanay, be required to appear personally or thru counsel in these proceedings in view of the fact that both have already reached their majority and are married, the former being a resident of the municipality of Baguio and the latter of the town of San Juan of the Province of La Union.

"Eighth. In regard to the heir Hermenegilda Dacanay, who is also deceased, it is ordered that her representatives or heirs institute intestate proceeding and obtain the appointment of an administrator to represent her in these proceedings. Hermenegilda Dacanay, according to information, has left as her only heirs, five children named Florencio, Eduvigis, Maria, Rosario, Isabelo and Celestino, had with her husband Gelacio Belmonte, who lives at 1140 Calle Azcarraga, Manila.

"BLANCO AND CASTRO. We agree to this stipulation."cralaw virtua1aw library

The court approved the stipulation, rejected the scheme of partition presented by the commissioners, and ordered the administrator to present, with his final account, a new scheme of partition on the basis agreed upon in the stipulation. Pursuant to this order, the administrator on April 10, 1923, submitted a scheme of partition according to which Bienvenida Dacanay, or rather her successors in interest, after bringing into collation the property described in Exhibit A-1, would owe the estate the sum of P20.50, with the result that all of the property of the estate would go to the natural children of Justiniano Dacanay. This scheme of partition was, of course, objected to by Silverio Hernandez, but Judge Anastacio R. Teodoro in a decision dated August 11, 1926, overruled the objections and approved the administrator’s plan of partition. The heirs of Bienvenida Dacanay excepted to the decision and the case is now before this court on appeal.

No regular final account was presented by the administrator, but annual accounts for the period from July 18, 1915, until October 31, 1925, were submitted to the court. These accounts show an income of P4,511.32 from the estate as against expenses of administration amounting to P14,511.32, thus leaving a balance of P10,147.80 in favor of the administrator and against the estate. Silverio Hernandez and his daughters opposed the approval of the accounts. Upon hearing, Judge Teodoro in a decision dated August 6, 1926, approved the principal items of the accounts in question but disallowed some of the minor items, thereby reducing the amount alleged to be due the administrator to P7,925.97. The opposing parties duly excepted to the decision and perfected their appeal to this court where it has been argued and considered in direct connection with the appeal from the decision of August 11, 1926, though separate briefs have been filed in the two appeals.

The appellants make the following assignments of error in the appeal from the decision of August 11, 1926, which indirectly also involves the decision of Judge Burgett, dated August 11, 1919:jgc:chanrobles.com.ph

"1. The court erred in declaring that Exhibit A-1 is an authentic document executed by the deceased Justiniano Rogero Dacanay.

"2. The court erred in determining the rights of the parties as to the inheritance in conformity with the Civil Code and not in accordance with the earlier legislation.

"3. The court erred in approving the scheme of partition presented by the administrator, Tirso Dacanay."cralaw virtua1aw library

The first assignment of error raises the principal question in the whole controversy. It appears from the record that in the earlier stages of the case not only the administrator but also his original counsel seem to have been under the erroneous impression that the admission of the will of Justiniano Dacanay to probate validated all of its provisions as to the distribution of the estate and that therefore Bienvenida Dacanay and her successors in interest could not successfully claim more than the share allotted to her by the will. This conception was probably dispelled by the lucid and well considered decision of Judge Camus dated September 23, 1916, and it must then have become clear to the administrator that the devises and bequests made by the testator in favor of the natural children could only be taken from the one third of libre disposicion and that devises and bequests in excess of that third would be invalid, notwithstanding the fact that the will had been duly probated. Apparently with the object of overcoming this difficulty, Exhibit A-1 was manufactured. As we have already stated, that document purports to be an inventory of property donated by Justiniano Dacanay to his daughter Bienvenida on the occasion of her marriage to Silverio Hernandez. The alleged total value of the property described in the "inventory" was over P14,000 and according to the testimony of the appellee’s witness, Dionisio Garcia, it constituted the greater part of Justiniano Dacanay’s fortune. By bringing this property and the income therefrom into collation, Bienvenida could be very neatly excluded from further participation in the inheritance.

That the document in question is a forgery is, in our opinion, established beyond all doubt. It is alleged to have been discovered in 1916 or 1917. Pedro Floresca, who at that time was the principal public school teacher in Bacnotan and a broader in the house of Tirso Dacanay, testified that while there he wrote the document from a draft furnished him by Tirso, but that he did not write the signatures. Judge Burgett in his decision of August 11, 1919, discredits this testimony and bases his conclusions principally upon the "conduct, manner, and demeanor" of the witness. It must be conceded that the testimony is somewhat confused and indicates nervousness, but considering the interruptions and heckling to which he was subjected by the trial court, his nervousness is easily explained, and but very little weight can be given the deductions drawn therefrom by the trial judge. Standing alone, the testimony might possibly have been open to doubt, but it is corroborated by so many important circumstances that there cannot be the slightest doubt as to its truthfulness. The body of the document, although it is dated July 24, 1886, is written in a Spencerian hand, and is clearly the handwriting of Pedro Floresca as appearing in authentic documents introduced in evidence. It is highly improbable that that style of handwriting could have been found in Bacnotan in 1886.

But that is not all. An examination with a good lens of the alleged signature of Justiniano Dacanay appearing at the bottom of Exhibit-A shows clearly that the pen strokes are quite different from those of the authentic signatures of Justiniano.

It is also improbably that Justiniano, who in the inventory attached to his will claims that the property received by his wife from Bienvenida Ronquillo was community property, should have donated the greater part of the property in his possession to his daughter Bienvenida Dacanay. And can it be believed that if such an important donation had been made, Justiniano would have said nothing about it in his will where he among other things says that Bienvenida had been disobedient and that he therefore reduced her share of the inheritance?

It is further to be noted that the document Exhibit A-1 is not in the form usually followed during the Spanish regime. The date on which it is alleged to have been written appears at the end of the document instead of in the introductory clause and the town name "Namacpacan" is written "Namagpakan" (the letter K was not commonly in use prior to the insurrection of 1896 but was quite generally used thereafter).

It may also be noted that the paper on which the document is written bears indications of having been subjected to some artificial process for the evident purpose of giving it the appearance of age.

There are several other circumstances tending to support our conclusions, but which we shall not take the time and space to discuss. We may, however, call attention to Exhibits A-2 and A-3, which were offered in evidence by the appellee for the purpose of using them as a standard of comparison with Exhibit A-1. They are dated January 4, 1882, and May 24, 1880, respectively, but are signed by cross marks, a practice which was unknown in the Philippines under the Spanish regime. The paper used for the exhibits was identical with that used in Exhibit A-1 and bear the same indications of artificial aging. The documents are unquestionably forgeries.

The question discussed under the second assignment of error might possibly have been decided in favor of the appellants if it had been raised in time. But it is presented for the first time in the appellants’ brief and during all the years preceding the appeal, it seems to have been taken for granted that the Civil Code, and not the earlier legislation, governs the distribution of the estate in the present case. The case has been tried on that theory and Judge Camus bases his decision of September 23, 1916, thereon without objection on the part of the herein appellants and no appeal was taken by them from that decision, a decision which therefore probably would have been affirmed if this court had not been astray by the false representations of the administrator of the estate. In these circumstances, we are not inclined to decide the case upon another and different theory, nor is it now our duty to do so.

The third assignment of error is indirectly disposed of in the discussion of the first assignment and is sustained.

The questions of accounting relate only to the administrator’s accounts for the following periods:chanrob1es virtual 1aw library

July 28, 1915 to June 30, 1916.

June 30, 1916 to June 30, 1917.

June 30, 1917 to November 23, 1918.

November 23, 1918 to November 30, 1919.

November 30, 1919 to October 10, 1920.

October 10, 1920 to December 25, 1921.

December 25, 1921 to October 17, 1922.

October 17, 1922 to September 12, 1923.

September 12, 1923 to October 28, 1924.

October 28, 1924 to October 31, 1925.

As to these accounts the appellants present the following assignments of error:jgc:chanrobles.com.ph

"The trial court erred:jgc:chanrobles.com.ph

"A. In finding the items of attorney’s fees to be legitimate expenses of the administration, and in approving said items.

"B. In approving the items concerning the bundles of palay alleged to have been stolen and spoiled, and in deducting their value from the income of the testamentary estate.

"C. In awarding the sum of P5,264 to administrator Tirso Dacanay as compensation for his services.

"D. In failing to disapprove the following items in the accounts presented by the administrator, to wit:chanrob1es virtual 1aw library

(a) P264 (Appellants’ Exhibit, p. 8).

(b) P200 (Appellants’ Exhibit, p. 8).

(c) P84 (Appellants’ Exhibit, p. 19).

(d) P432 (Appellants’ Exhibit, p. 31).

"E. In not holding the administrator Tirso Dacanay to be manifestly unfit, negligent, dishonest, and acting in bad faith in the performance of his duties as such administrator of this testamentary estate.

"F. In denying the petition to have the administrator Tirso Dacanay removed from his office.

"G. In approving the administrator’s accounts showing a balance of P7,925.97 against the testamentary estate and in favor of the administrator."cralaw virtua1aw library

Assignment of error A is, in our opinion, well taken. The attorney’s fees referred to are entered as follows in the accounts for the periods October 17, 1920, to December 25, 1921; October 17, 1922, to September 12, 1923; September 12, 1923, to October 28, 1924; and October 28, 1924, to October 31, 1925.

"Las partidas de que se trata constan en las siguientes cuentas:chanrob1es virtual 1aw library

(a) Por las ocho comparecencias del Abogado Sr. Mariano

Legaspi en el Juzgado de La Union, una en la Corte

Suprema, y otra en el Juzgado de Manila, todo en in-

teres de la testamentaria, tambien se la ha pagado

por todo la cantidad de P3,200.00

(b) Por las tres comparecencias del Abogado Sr. J. E.

Blanco en el Juzgado de Primera Instancia de La

Union, otras dos comparecencias de el en la Corte

Suprema, una en el Juzgado de Manila, todo en

interes de la Testamentaria, se le ha pagado por

todo la cantidad de 2,000.00

(c) Cantidad entregada al Abogado Sr. J. E. Blanco como

anticipo de los quinientos pesos convenidos como ho-

norarios de el como abogado que ha hecho la parti-

cion y venir al Juzgado en su vista para sostener su

aprobacion, es P200.00

(d) Honorarios pagados al Abogado Sr. Jesus E. Blanco

para completar los quinientos pesos como honora-

rios de el convenidos como abogado que ha hecho

el proyecto de particion por orden del Juzgado y

venir al Juzgado en su vista para sostener su apro-

bacion, entregada en septiembre 25 de 1923 es P200

entregada en diciembre 9 de 1923 es P100, total es 300.00

(e) Honorarios pagados al Abogado Sr. Jesus E. Blanco

a cuenta de los quinientos pesos convenidos como

honorarios de el para representar al Administrador

en la aprobacion de sus cuentas y para defender su

remocion que piden los abogados de Silverio Her-

nandez, pagado en 1.