Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-23253               March 28, 1969

IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE

CABANGBANG" FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA
CHUA, petitioner-appellant, vs.MR. & MRS. BARTOLOME CABANGBANG ET AL.,
respondents-appellees.

Francisco R. Sotto and Associates for petitioner-appellant.Teofilo F. Manalo for respondents-

appellees Mr. & Mrs. Cabangbang.Enrico R. Castro for respondent-appellee Victor T.
Villareal.

CASTRO, J.:

            This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of
First Instance of Rizal dismissing Pacita Chua's petition for habeas corpus directed against
Bartolome Cabangbang and his wife Flora Cabangbang.

            Pacita Chua, when still in the prime of youth, supported herself by working in
nightclubs as a hostess. And sexual liaison she had with man after man without benefit of
marriage. She first lived with a certain Chua Ben in 1950 by whom she had a child who died
in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named
Robert and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after the
birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their
separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met
Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child, a girl,
was born to her. In 1961 when this last child was still an infant, she and Villareal separated.
Without means to support the said child, Pacita Chua gave her away to a comadre in Cebu.

            Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple,
acquired the custody of the child Betty who was then barely four months old. They have since
brought her up as their own. They had her christened as Grace Cabangbang on September
12, 1958. 1

            There is some testimonial conflict on how the Cabangbang spouses acquired custody
of the girl Betty (or Grace), Pacita Chua avers that in October 1958, while she and Villareal
were still living together, the latter surreptitiously took the child away and gave her to the
Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of
the whereabouts of her daughter, only in 1960 when the girl, who was then about three years
old, was brought to her by Villareal, who shortly thereafter returned the child to the
Cabangbangs allegedly thru threats intimidation, fraud and deceit. The Cabangbang spouses
assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of
their residence; that she reared her as her own and grew very fond of her; and that nobody
ever molested them until the child was 5-½ years of age.lâwphi1.ñet

            At all events, it is the lower court's finding that the child was given to the Cabangbang
spouses by Villareal with the knowledge and consent of Pacita Chua.

            By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy
furnished to Villareal, Pacita Chua thru counsel demanded the surrender to her of the custody
of the child. Failing to secure such custody, Pacita Chua (hereinafter referred to as the
petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance
of Rizal, praying that the court grant her custody of and recognize her parental authority over
the girl. Named respondents in the petition were Villareal and the spouses Cabangbang.
            On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any
of his deputies to produce the body of Betty Chua Sy or Grace Cabangbang before the court
a quo on June 17, 1963, at 8:30 a.m. However, for reasons not stated in the record, the child
was not produced before the lower court as ordered.

            On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed
their answer the next day.

            After due trial, the lower court on May 21, 1964 promulgated its decision, the
dispositive portion of which reads as follows:

            IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be
for the welfare of the child Betty Chua Sy also known as Grace Cabangbang to be under the
custody of respondents Mr. and Mrs. Bartolome Cabangbang. Petition dismissed. No
pronouncement as to costs.

            In this appeal now before us, the petitioner tenders for resolution two issues of law
which, by her own formulation, read as follows: "The lower court erred when it awarded the
custody of petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven
(7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally
deprived petitioner of parental authority over her daughter."

            We resolve both issues against the petitioner.

            I.

            Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in
article 363 of the Civil Code she cannot be separated from her child who was less, seven
years of age, and that she cannot be deprived of her parental authority over the child because
not one of the grounds for the termination, loss, suspension or deprivation of parental
authority provided in article 332 of the same Code obtains in this case.

            Whether the petitioner can be legally separated from her child, Betty Chua Sy or
Grace Cabangbang, is an issue that is now moot and academic. Having been born on
December 15, 1957, the child is now 11 years of age. Consequently, the second paragraph of
art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age
from her mother, "unless the court finds compelling reasons for such measure," has no
immediate relevance. The petitioner correctly argues, however, that the reasons relied upon
by the lower court — i.e., "petitioner is not exactly an upright woman" and "it will be for the
welfare of the child" — are not strictly speaking, proper grounds in law to deprive a mother of
her inherent right to parental authority over her child. It must be conceded that minor children
— be they legitimate, recognized natural, adopted, natural by legal fiction or illegitimate, other
than natural as specified in art. 269 of the Civil Code — are by law under the parental
authority of both the father and the mother, or either the father or the mother, as the case may
be. But we take the view that on the basis of the aforecited seemingly unpersuasive factual
premises, the petitioner can be deprived of her parental authority. For while in one breath art.
313 of the Civil Code lays down the rule that "Parental authority cannot be renounced or
transferred, except in cases of guardianship or adoption approved by the courts, or
emancipation by concession," it indicates in the next that "The courts may, in cases specified
by law deprive parents of their [parental] authority." And there are indeed valid reasons, as
will presently be expounded, for depriving the petitioner of parental authority over the minor
Betty Chua Sy or Grace Cabangbang.

            It is the lower court's finding that the child was given to the Cabangbangs by Villareal
with the knowledge and consent of the petitioner. In support of this finding, it cited the facts
that the petitioner did not at all — not ever — report to the authorities the alleged
disappearance of her daughter, and had not taken any step to see the child when she
allegedly discovered that she was in the custody of the Cabangbangs. It discounted the
petitioner's claim that she did not make any move to recover the child because the
Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings of
fact. Having taken her appeal directly to this Court, she is deemed to have waived the right to
dispute any finding of fact made by the trial court. 2

            Art. 332 of the Civil Code provides, inter alia:

            The courts may deprive the parents of their authority or suspend the exercise of the
same if they should treat their children with excessive harshness or should give them
corrupting orders, counsels, or examples, or should make them beg or abandon them.
(emphasis supplied)

            Abandonment is therefore one of the grounds for depriving parents of parental

authority over their children.

            Was the petitioner's acquiescence to the giving by Villareal of her child to the
Cabangbangs tantamount to abandonment of the child? To our mind, mere acquiescence —
without more — is not sufficient to constitute abandonment. But the record yields a host of
circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and
intention to completely forego all parental response possibilities and forever relinquish all
parental claim in respect to the child.

            She surrendered the custody of her child to the Cabangbangs in 1958. She waited
until 1963, or after the lapse of a period of five long years, before she brought action to
recover custody. Her claim that she did not take any step to recover her child because the
Cabangbangs were powerful and influential, does not deserve any modicum of credence. A
mother who really loves her child would go to any extent to be reunited with her. The natural
and normal reaction of the petitioner — once informed, as she alleged, and her child was in
the custody of the Cabangbangs — should have been to move heaven and earth, to use a
worn-out but still respectable cliche, in order to recover her. Yet she lifted not a finger.

            It is a matter of record — being the gist of her own unadulterated testimony under oath
— that she wants the child back so that Sy Sia Lay, the alleged father, would resume
providing the petitioner the support which he peremptorily withheld and ceased to give when
she gave the child away. A woman scorned, she desires to recover the child as a means of
embarrassing Villareal who retrieved the jeep he gave her and altogether stopped living with
and supporting her. But the record likewise reveals that at the pre-trial conducted by the court
a quo, she expressed her willingness that the child remain with the Cabangbangs provided
the latter would in exchange give her a jeep and some money.

            The petitioner's inconsistent demands in the course of the proceedings below, reveal
that her motives do not flow from the wellsprings of a loving mother's heart. Upon the
contrary, they are unmistakably selfish — nay, mercenary. She needs the child as a leverage
to obtain concessions — financial and otherwise — either from the alleged father or the
Cabangbangs. If she gets the child back, support for her would be forthcoming so she thinks
— from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the
child, she would agree provided they gave her a jeep and some money.

            Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to
abandon the child — from the very outset when she allowed Villareal to give her away to the
Cabangbangs. It must be noted that the abandonment took place when the child, barely four
months old, was at the most fragile stage of life and needed the utmost care and solicitude of
her mother. And for five long years thereafter she did not once move to recover the child. She
continuously shunned the natural and legal obligations which she owed to the child;
completely withheld her presence, her love, her care, and the opportunity to display maternal
affection; and totally denied her support and maintenance. Her silence and inaction have
been prolonged to such a point that her abandonment of the child and her total relinquishment
of parental claim over her, can and should be inferred as a matter of law. 3
            Note that this was not the only instance when she gave away a child of her own flesh
and blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in
Cebu because she could not support it.

            Of incalculable significance is the fact that nowhere in the course of the petitioner's
lengthy testimony did she ever express a genuine desire to recover her child Betty Chua Sy
or Grace Cabangbang — or, for that matter, her other child Betty Tan Villareal — because
she loves her, cares for her, and wants to smother her with motherly affection. Far from it.
She wants Betty Chua Sy or Grace Cabangbang back so that the alleged father would
resume giving her (the petitioner) support. She wants her back to humiliate and embarrass
the respondent Villareal who, with her knowledge and consent, gave the child to the
Cabangbangs. But — "most unkindest cut of all"! — she nevertheless signified her readiness
to give up the child, in exchange for a jeep and some money.

            We therefore affirm the lower court's decision, not on the grounds cited by it, but upon
a ground which the court overlooked — i.e., abandonment by the petitioner of her child. 4

            Contrast the petitioner's attitude with that of the respondents Cabangbang —

especially the respondent Flora Cabangbang who, from the moment the child was given to
them, took care of her as if she were her own flesh and blood, had her baptized, and when
she reached school age enrolled her in a reputable exclusive school, for girls.

            Ironically enough, the real heart-rending tragedy in this case would consist not in
taking the child away from the Cabangbangs but in returning her to the custody of the
petitioner.

            For, by her own admission, the petitioner has no regular source of income, and it is
doubtful, to say the very least, that she can provide the child with the barest necessities of life,
let alone send her to school. There is no insurance at all that the alleged father, Sy Sia Lay —
an unknown quantity, as far as the record goes — would resume giving the petitioner support
once she and the child are reunited. What would then prevent the petitioner from again doing
that which she did before, i.e., give her away? These are of course conjectures, but when the
welfare of a helpless child is at stake, it is the bounden duty of courts — which they cannot
shirk — to respect, enforce, and give meaning and substance to a child's natural and legal
right to live and grow in the proper physical, moral and intellectual environment. 5

            This is not to say that with the Cabangbang spouses, a bright and secure future is
guaranteed for her. For life is beset at every turn with snares and pitfalls. But the record
indubitably pictures the Cabangbang spouses as a childless couple of consequence in the
community, who have given her their name and are rearing her as their very own child, and
with whom there is every reason to hope she will have a fair chance of normal growth and
development into respectable womanhood.

            Verily, to surrender the girl to the petitioner would be to assume — quite incorrectly —
that only mothers are capable of parental love and affection. Upon the contrary, this case
precisely underscores the homiletic admonition that parental love is not universal and
immutable like a law of natural science.

            II.

            The petitioner assails as illegal and without basis the award of the custody of Grace
Cabangbang or Betty Chua Sy to the Cabangbang spouses upon the grounds, first, that the
couple are not related by consanguinity or affinity to the child, and second, because the
answer of the spouses contains no prayer for the custody of the child.

            The absence of any kinship between the child and the Cabangbangs alone cannot
serve to bar the lower court from awarding her custody to them. Indeed, the law provides that
in certain cases the custody of a child may be awarded even to strangers, as against either
the father or the mother or against both. Thus, in proceedings involving a child whose parents
are separated — either legally or de facto — and where it appears that both parents are
improper persons to whom to entrust the care, custody and control of the child, "the court may
either designate the paternal or maternal grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person to take charge of such child, or commit it to and
suitable asylum, children's home, or benevolent society." 6

            Parenthetically, sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's
contention that the first sentence of art. 363 of the Civil Code, which states that

            In all questions on the care, custody, education and property of children, the latter's
welfare shall be paramount.....

            applies only when the litigation involving a child is between the father and the mother.
That the policy enunciated, in the abovequoted legal provision is of general application, is
evident from the use of the, adjective all — meaning, the whole extent or quantity of, the
entire number of, every one of. 7 It is, therefore, error to argue that if the suit involving a child's
custody is between a parent and a stranger, the law must necessarily award such custody to
the parent. Sec 7, Rule 99 of the Rules of Court, precisely contemplates, among others, a suit
between a parent and a stranger who, in the words of the provision, is "some reputable
resident of the province." And under the authority of the said rule, the court — if it is for the
best interest of the child — may take the child away from its parents and commit it to, inter
alia, a benevolent person.

            The petitioner's contention that the answer of the spouses Cabangbang contains no
prayer for the retention by them of the custody of the child, is equally devoid of merit. The
several moves taken by them are clear and definitive enough. First, they asked for her
custody pendente lite. Second, they sought the dismissal of the petition below for lack of
merit. Finally, they added a general prayer for other reliefs just and equitable in the premises.
Surely the above reliefs prayed for are clearly indicative of the Cabangbangs' genuine desire
to retain the custody of Betty Chua Sy or Grace Cabangbang.

            III.

            Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly
provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto." The petitioner has not proven that she is
entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by
wantonly and completely shunting aside her legal and moral obligations toward her child, she
must be deemed as having forfeited all legitimate legal and moral claim to her custody. The
lower court acted correctly in dismissing her petition.

            ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.

G.R. No. L-2386  April 16, 1906

MIGUEL FUENTES, ET AL., appellants-appellee, vs. JUANA CANON Y

FAUSTINO, ET AL.,Defendant-Appellant.

Ramon Salinas, for appellants. Aguedo Velarde, for appellee.

WILLARD, J.:

The twentieth clause of the will of Josefa Faustino y Mendoza, who died on the 1st
day of April, 1887, is as follows:
Vigesima. - Mando se entreguen a los conyuges Don Miguel de la Fuente y Doña
Potenciana Medrano tres mil pesos para invertirlos en compra de buenos terrenos
de labor quedandose con una tercera parte y repartiendo las dos restantes la una
a la viuda e hijo de Don Eriberto de la Fuente y la otra a los hijos y herederos de
Don Honorio de la Fuente.

The plaintiffs herein, Miguel de la Fuente and Potenciana Medrano, brought this
action against the twenty heirs of Josefa to recover the 3,000 pesos mentioned in
this legacy. Judgment was entered in favor of the plaintiffs in the court below.
Defendants excepted to the judgment, and have brought the case here by bill of
exceptions. No motion for a new trial was made in the court
below.chanroblesvirtualawlibrary chanrobles virtual law library

The first claim of the appellants is that the plaintiffs are required to give a bond
before they are entitled to the delivery of the 3,000 pesos, the legacy here in
question being defined in law 21, title 9, partida 6, and known as a legado modal.
There is nothing in this claim. As far as the heirs of the testatrix are concerned,
there is no condition whatever attached to the legacy. With the rights of the
beneficiaries mentioned in the said twentieth clause the defendants in this case
have nothing to do. As to them there was an absolute gift of 3,000 pesos, and the
plaintiffs have the right to receive that from the heirs, and they are under no
obligation to give security to the heirs before the money is
paid.chanroblesvirtualawlibrary chanrobles virtual law library

The court below ordered judgment against the defendants for 3,000 pesos and
interest from January 1, 1894. The appellants claim that this was error. It was
proved that in November, 1893, the plaintiffs commenced an action against the
heirs of the testatrix to recover this legacy. For some reason that case was not
brought to trial. It, however, amounted to a judicial demand for the payment of
the money, and the interest commenced to run from that
date.chanroblesvirtualawlibrary chanrobles virtual law library

The case shows that upon the death of Josefa her property was divided among
two nephews and a niece. One of the nephews afterwards died, and his property
was divided among heirs of two other nephews who had died before Josefa and
the nephew and niece who had survived her. The court ordered judgment against
the twenty defendants for the payment of 3,000 pesos and interest, without any
statement as to how much each defendant was to pay. The judgment as it stands
must be construed as imposing an equal pro rata liability, and for this reason we
think it is erroneous. The liability imposed upon the heirs to pay this legacy is pro
rata ( mancomunada) and in proportion to the amount of the estate to which
each one was entitled. The judgment of the court below is modified, and
judgment is rendered against the defendants for the following amounts, to wit:
Maria Josefa Canon Faustino, 1,250 pesos; Cipriana Pilar Faustino, Lazaro
Faustino, Filomena Faustino, and Francisco Faustino, 62.50 pesos each;
Emerenciano Faustino, Jose Faustino, Exequiel Faustino, Trinidad Faustino, Pedro
Faustino, Jose Faustino, and Manuel Faustino, 35.71 pesos each; Juana Canon
Faustino, Fernanda Canon Faustino, Marciana Canon Faustino, and Fernando
Canon Faustino, 250 pesos each; Concepcion Suarez y Canon Faustino, Alfredo
Suarez y Canon Faustino, Adolfo Suarez y Canon Faustino, and Alfonso Suarez y
Canon Faustino, 62.50 pesos each.chanroblesvirtualawlibrary chanrobles virtual
law library

Judgment is also rendered against each one of the defendants for interest at the
rate of 6 per cent per annum from the 1st day of January, 1894, on the sum for
which judgment is herein entered as above set forth. With this modification the
judgment of the court below is affirmed. No costs will be allowed to either party
in this court. After the expiration of twenty days let final judgment be entered
herewith and ten days thereafter let the case be remanded to the court below for
proper procedure. So ordered.chanroblesvirtu

CHIONG JOC-SOY, petitioner-appellant, vs. JAIME VAÑO, ET

AL., respondents-appellants.

Levering & Wood, for petitioner.

Del-Pan, Ortigas & Fisher, for respondents.

SYLLABUS

1.WILLS; PROBATE; HEIRS. — When no appeal is taken from an order

probating a will, the heirs can not in subsequent litigation in the same proceeding raise
questions relating to its due execution.
2.ID.; LEGACY; CONDITIONAL GIFTS. — A testatrix left 50,000 pesos to a
legatee. 20,000 pesos for himself and 30,000 for the burial and other expenses of
interment of the remains of her deceased husband. Held, That this gift was not
conditional.
3.ID.; LEGATEES. — Article 797 of the Civil Code requires the heirs of the
legatee to give security for the proper application of a legacy falling within the terms of
that article, but does not require such security from the legatee himself.
4.ID.; ID.; LEGACY; INTEREST. — A legacy of money, unless the testator
otherwise orders, draws interest only from the time of a demand therefor made by the
legatee.
5.JUDGMENT; CURRENCY. — A judgment directed the payment of a sum of
money in Mexican currency or its equivalent in Philippine currency "at this day's price
fixed by the court." The court did not name any price in its judgment. Held, That the
defendant should, when the judgment was paid, ascertain the price on the date of the
judgment and pay at that rate.
DECISION

WILLARD, J p:

Genoveva Rosales, a resident of Cebu, made her will on the 26th day of
October, 1903. The third clause is in part as follows:
"3.Of the third part of the estate, which is at my free
disposal, I bequeath to the Chinaman Chiong Joc-Soy, the sum of
50,000 pesos, Mexican currency, of which amount 20,000 pesos are
for the aforesaid Chiong Joc-Soy, and the balance of 30,000 pesos
for the expenses of interment etc. of my late husband Don Nicasio
Veloso, . . ."
The rest of her property, which amounted in all to upward of 800,000 pesos,
she left to her children. After her death the will was presented for probate in the Court
of First Instance of the Province of Cebu and was duly proved and allowed on the 24th
of November, 1903, and an administrator with the will annexed was appointed. By order
of the court he was allowed one year from the 24th of November, 1903, in which to pay
the debts and legacies of the deceased.
On the 6th of February, 1905, the petitioner, Chiong Joc-Soy, the legatee
named in the will, filed a petition in the said proceeding for the settlement of the estate
of the deceased, Genoveva Rosales, asking that the administrator be directed to pay
him the 50,000 pesos mentioned in the will. An order was made by consent on the 28th
of February, 1905, directing the administrator to pay to the petitioner the 20,000 pesos
expressed in the first part of the legacy. As to the remainder of the amount therein
expressed, the court, on the 6th day of May, 1906, made another order or judgment
which as afterwards modified directed as follows:
"And the court hereby orders that the administrator shall
immediately pay over the said to the Joc-Soy the sum of 30,000
pesos, Mexican currency, or its equivalent in Conant money, at this
day's price, fixed by the court, with interest at the rate of 6 per cent
annum from the date of the presentation of the claim, or that is,
from the 6th of February, 1905."
From this order both the petitioner, Chiong Joc-Soy, and the administrator
and some of the heirs have appealed. No appeal was taken by any one from the order
probating the will.
I.As to the appeal of the administrator and the heirs: It is alleged as the first
assignment of error that the will was not executed in accordance with the law; that the
legacy therein did not, therefore, exist and consequently that the court erred in ordering
the administrator to pay the amount thereof of the petitioner.
The complete answer to this claim is that the validity of the will was
conclusively established by the order of the court admitting it to probate. The question
as to whether in the execution of the will the requirements of the law were complied
with was then submitted to that court for decision. It had jurisdiction to decide that
question. The heirs who have now appealed were parties to that proceeding. After a
hearing, the court decided the question and from that decision none of the heirs
appealed. The judgment of the probate court in such case stands like any other decision
of a court of competent jurisdiction. Its judgments are binding upon the parties
interested and their validity, in the absence of any proof of fraud or accidents, or
mistakes, can be called in question only by an appeal. In this case there is no
suggestion of the existence of any of those things. There is no claim made that the
heirs were not properly notified of the hearing upon the probate of the will and nothing
to indicate that they were not present and took part in that hearing. Section 625 of the
Code of Civil Procedure provides that "the allowance by the court of a will of real and
personal estate shall be conclusive as to its due execution."
The second error assigned is that the court below ordered the payment of the
30,000 pesos without requiring the petitioner to give a bond conditioned that he would
dispose of the money as indicated in the will.
Article 797 of the Civil Code is as follows:
"The statement of the object of the designation or of the
legacy or the application to be given to what has been left by the
testator, or the charge imposed by the same, shall not be considered
as a condition, unless it appears that such was his will.
"What has been left in this manner may be immediately
claimed and is transmissible to the heirs who give security for the
fulfillment of the orders of the testator and the repayment of what
they may have received, with its fruits and interest, should they fail
to comply with this obligation."
From the first paragraph of this article it is apparent that there is a
presumption in cases of this kind that the legacy is not conditional, and unless it clearly
appears in the will that it was the intention of the testatrix in this case to make the
legacy conditional, the words used must be considered as not imposing any condition.
We think under all the circumstances of the case that the testatrix did not intend to
impose upon the legatee any condition in making this gift of 30,000 pesos. It is true, as
claimed by the heirs, that it is very evident that she intended the 20,000 pesos to be the
absolute property of the petitioner and that as to the 30,000 pesos she had a different
intention, but this does not resolve the question presented. That she wished and
desired the petitioner to expend the 30,000 pesos as indicated in the will is apparent,
but the question is, did she intent to make her gift conditional, or did she rely upon her
confidence in the petitioner that he would carry out her suggestion without the
necessity of imposing a condition upon him? It appears that the husband of the testatrix
was a Chinaman; that she was a Filipina, and that the legatee was Chinaman. The
manner in which persons of Chinese descent spend money to perpetuate the memory of
a deceased person of their race does not appear, nor the amount that they are
accustomed so to expend, nor the time during which it may be expended. All these
circumstances were doubtless known to the testatrix and we believe that knowing them
she intentionally selected a person of Chinese birth to carry out her purposes in these
regard. We hold, therefore, that they legacy is not conditional.
When the legacy is not conditional, there may, however, be cases which do
not fall under the provisions of said article 797.
Scaevola says in his Commentaries on the Civil Code, volume 13, page 646:
"It is doubtful if the definite directions of the testator, not
imposed in the sense of a duty, are embraced in the quoted
expression of the purpose of the legacy, with the consequences
provided in paragraph 2 of the said article 797. Examples of this
class of instructions: "I bequeath to Luis my property and desire him
to expend in good works all in excess of that which is necessary for
his support. I name him my heir so that he may as in duty bound
attend to the better education of his children." In these cases,
capable of infinite variety, attention must be paid to the true
intention of the testator, and if it appears that there was no wish to
impose a definite condition, but merely to express a desire or
personal opinion as to the best disposal of the estate, then article
797 would not be applicable."
We do not find it necessary to decide whether the legacy in question comes
within the provisions of the said article or not, for we are satisfied that, even if it does,
the judgment of the court below may be affirmed. A fair construction of the second
paragraph of the article indicates that the heirs of the legatee are the only ones who are
required to give security, and that such security is not required of the legatee himself.
In the case of Fuentes vs. Canon, 1 No. 2386, decided April 16, 1906 (4 Off.
Gaz., 379), the will there in question contained the following clause:
"Twentieth. I order the sum of 3,000 pesos to be
delivered to the spouses Don Miguel de la Fuente and Doña
Potenciana Medrano to be expended in the purchase of good
agricultural land, one-third of which shall belong to them, and of the
remaining two-thirds, one third shall be given to the widow and son
of Don Eriberto de la Fuente and the other third to the sons and
heirs of Don Honorio de la Fuente."
We held that the heirs were bound to pay the full 3,000 pesos to the legatee
named in the will and that the court could not require such legatee to give security that
they would deliver to the other persons named in the will the parts corresponding to
them. The testatrix in that case, however, died prior to the enactment of the Civil Code.
 The third assignment of error made by the heirs is that the court erred in
ordering the payment of interest from the date of the presentation of the petition. The
petitioner in his appeal has also assigned as error the failure of the court to order the
payment of interest from the date of the death of the testatrix, or at least from the
expiration of the period of one year granted to the administrator for the purpose of
paying the debts.
 
Article 882 of the Civil Code provides that when the legacy relates to a
specific article the legatee is entitled to the income and rents from the death of the
deceased, but article 884 is as follows:
"If the bequest should not be of a specific and determined
thing, but generic or of quantity, its fruits and interest from the
death of the testator shall belong to the legatee if the testator should
have expressly so ordered."
In this case the testatrix did not expressly provide that the legatee should be
entitled to interest from her death. In the case of Fuentes vs. Canon, above cited, the
same question was presented and we there held that the legatee was entitled to
interest from the date of his demand for payment. We follow the rule laid down in that
case and hold that the court committed no error in ordering the judgment of interest
from the date of presentation of the petition by the legatee.
II.As to the appeal of the petitioner, what has been said disposes of all the
assignments of error made by him except one. After the court below had made its order
of March 6, 1906, in which it directed the payment of 30,000 Mexican pesos, or its
equivalent in Philippine currency at that day's price fixed by the court, the petitioner
made a motion that the court fix the rate at 100 pesos, Mexican currency, for 100 pesos
and 25 centavos, Philippine currency, and presented an affidavit to the effect that was
the market price of Mexican currency on the 6th day of March. The court below, in its
order of the 28th of April, which was not made by the same judge who made the order
of the 6th of March, held that it was improper at that time to receive evidence as to the
market value of the two kinds of money; that no evidence had been presented at the
trial as to such market value, and that consequently the court, in making the order,
must have intended to apply the rate fixed by the Executive Order then in force.
We can not agree with the court's construction of the order of the 6th of
March. We think that order means that the rate of exchange should be the rate which
actually existed in Cebu on the 6th day of March, 1906, and the court, not having
determined that in his order, left it to the parties to ascertain and determine it when
payment was made. That price is a matter which can be easily determined at any time,
and we hold that it is the duty of the administrator, if he pays in Philippine currency, to
pay at the market price of Mexican currency at Cebu on the 6th day of March, 1906.
The judgment of the court below is affirmed, without costs to either party in
this court.
After the expiration of twenty days let judgment be entered in accordance
herewith and ten days thereafter let the case be remanded to the court from whence it
came for proper action. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, and Tracey, JJ., concur.

In re Estate of the late Mrs. R. H. Frankel, PHILIPPINE

TRUST COMPANY, administrator-appellee, vs. CLARA WEBBER
ET AL., appellants. FREMA FISCHLER, appellee.

Gibbs & McDonough, for appellants Clara and Gertrude Webber.

 J. A. Wolfson, for appellants Anna Hartske and Charles Albert Robinson.

Harvey & O'Brien, for appellant Fred Frankel.

Feria & La O, for administrator-appellee.

Ross, Lawrence & Selph, for appellee Fischler.

Benj. S. Ohnick, for Peoples Bank and Trust Co. as amicus curiæ.

SYLLABUS

1.EXECUTORS AND ADMINISTRATORS; ADDITIONAL ALLOWANCE FOR

JUDICIAL ADMINISTRATOR. — It lay within the lower court's discretion to grant the
judicial administrator an additional allowance for services rendered, and there is no
reason for holding that said court abused that discretion or made an improper use of it,
in view of the importance and duration of the work performed.
2.ID.; DEPOSIT OF FUNDS IN BANK. — The conduct of the administrator of
an inheritance who deposits the funds entrusted to his care in a current account with a
solid and responsible bank, instead of depositing them in a fixed account at a higher
rate of interest, with a view to having them subject to withdrawal at a moment's notice,
is not unlawful or even improper, but rather worthy of approval; and he is not
answerable for the low rate of interest thus obtained in exchange for the security in the
custody of the funds, and the certainly of their withdrawal at a moment's notice.
3.ID.; MANAGEMENT OF ESTATE. — A judicial administrator of an inheritance
is not called upon to speculate with funds in his custody or to place them where they
may not be withdrawn at once at the order of a competent court, but rather to manage
them in accordance with law, keeping them subject to the orders of the proper court.
(Sec. 643, Code of Civil Procedure.)
DECISION

ROMUALDEZ, J p:

This appeal has been taken from an order of the Court of First Instance of
Manila entered in the course of the present proceedings, and providing as follows:
"In view of the foregoing (1) the item of two thousand
pesos (P2,000) for attorney's fees in the final account submitted by
the administrator is hereby approved; but the scheme of partition
must be amended so as to charge this sum proportionally to the
estate of each of the spouses, Herman Frankel and Mrs. Frankel. In
other words, this sum must be taken from the value of the estate of
the husband and of the wife pro rata.
"(2)The opposition of Anna Hartske, her son Charles
Robinson, Clara Webber and her daughter, Gertrude Webber, to the
scheme of partition is disallowed, together with every other
opposition to the final account based upon the amount of the
interest due on the sum of forty thousand eight hundred three pesos
and seventy-three centavos (P40,803.73). To this sum, however,
must be added the interest for the month of May, 1930, which,
according to the report, amounts to eighty- three pesos and twenty-
three centavos (P83.23), and the interest thereon at the same rate
from the date last mentioned until these funds are finally delivered.
 "(3)Clara Webber's opposition in the matter of the jewels
is also overruled.
"(4)Lastly, Frema Fischler's opposition with reference to
the payment of interest upon the principal of her legacy is also
overruled.
"The judicial administrator shall file a scheme of partition,
amended in accordance with this order, within five (5) days after it
becomes final under the law." (Pp. 54 and 55, Bill of Exceptions.)
The appellants, through counsel, assign the following alleged errors as
committed by the trial court:
"1.In overruling the oppositions of the appellants to the
final account and project of partition filed on May 19, 1930, and to
the report filed on June 26, 1930.
"2.In overruling Mrs. Clara Webber's additional objection
to the project of partition with reference to the jewelry."
These proceedings deal with a final account, a report, and a scheme of
partition filed by the administrator of the estate of the late R. H. Frankel.
The appellants objected to said final account, scheme of partition, and
report, upon the following grounds:
(1)That the value of the estate belonging to the conjugal partnership of
Herman Frankel and his wife, at the time of the latter's death, is not shown; (2) that the
additional item of P2,000 for the administrator's services is improper, unlawful, and
exorbitant; (3) that the administrator did not invest the funds belonging to the estate
adequately and advantageously; and (4) that the interest earned, according to the
report filed by the administrator on June 26, 1930, is not accurate, and the statement of
the income and the expenses cannot be understood by the parties.
The value of the conjugal estate has been finally decided by a competent
court, and is now res judicata.
To grant an additional allowance for the services rendered by the judicial
administrator was discretionary with the trial court, and we find no reason for holding
that said court abused that discretion or made improper use of it, in view of the
importance and duration of the work in question.
With reference to the investment of the inheritance funds, we find that the
trial court rightly held such investment to be in no way exceptionable or contrary to any
law.
The conduct of the administrator of an inheritance who deposits the funds
entrusted to his care in a current account with a solid and responsible bank, instead of
depositing them in a fixed account at a higher rate of interest, with a view to having
them subject to withdrawal at a moment's notice, is not unlawful or even improper, but
rather worthy of approval; and he is not answerable for the low rate of interest thus
obtained, because, generally speaking — and there is no reason for applying any special
rule — in default of instructions to the contrary, a judicial administrator of an
inheritance is not called upon to speculate with funds in his custody or to place them
where they may not be withdrawn at once at the order of a competent court, but rather
to manage them in accordance with the law, keeping them subject to the orders of the
proper court. (Sec. 643, Code of Civil Procedure.) To this end when the administrator
happens to be a trust company engaged in banking, as in this case, there is nothing
wrong in its depositing the inheritance funds in its own banking department rather than
in another bank, if there is no evidence that its own bank is lacking in security.
No question is raised regarding the rate of interest earned by such funds, but
the computation of interest is said to be inaccurate. There is no merit in this contention,
considering the administrator's report covering the period from August, 1926, to April
25, 1930. Furthermore, with reference to the deposit and the rate of interest obtained
we consider the following remarks of the administrator-appellee just and sound:
"The Philippine Trust Company has had at all times and
still now has sufficient lawful money of the Philippine Islands to pay
all the cash of said estate on deposit with it. It has not invested the
funds of the estate because it considers that in view of the will, the
action of the residuary legatees, and the nature of its duties, any
such investment would make the funds unliquid, and would violate
the duties of its trust, which were to assemble the assets, in order to
distribute as this Honorable Court may decree." (Pp. 9 and 10, Brief
of the administrator-appellee.)
As to the second assignment of error with reference to Mrs. Clara Webber's
objection, we find no merit in it, considering the proposed adjudication of the jewelry
according to the scheme of partition, and the grounds upon which the trial court
overruled this additional objection, to wit:
"Mrs. Clara Webber filed an additional opposition to the
scheme of partition in so far as it gives her one-half of the jewelry.
She contends that inasmuch as the will gives her one-half of said
jewelry, and as its value has depreciated considerably, being hardly
worth P500 at present, it is a serious error and a manifest lack of
equity to appraise its value at P2,995.50, adjudicating to her one-half
thereof. She proposes that the jewelry be sold and the proceeds
divided equally between her and the other legatee. This contention is
not well taken: first, because the will of the testatrix must be carried
out where it provides that one-half of the jewelry itself is to be given
to this opponent; and secondly, because there is no need of selling
the jewelry; as for the value, that is reasonable because it was fixed
by the committee of appraisal, and no proper objection was entered
in due time. This additional opposition must be rejected.
"The last opposition is that filed by Frema Fischler, who
claims the legal interest upon her legacy of P10,000. It is argued that
since this sum of money has been in the administrator's hands for
many years, this legatee is entitled to the legal interest upon it from
the time of the testatrix's death. There is no merit in this opposition.
While it is true that under article 882 of the Civil Code the legacy of a
specific determinate thing vests in the legatee upon the testator's
death, as well as any pending fruits or income, inasmuch as we are
here concerned with a generic or a so-called legacy of quantity,
article 884 of the Code must be applied, which provides that interest
from the time of the testator's death shall be given the legatee if the
testator's death shall be given the legatee if the testator has
expressly so provided. With reference to the present opponent, it
appears that the testatrix has not clearly and expressly provided for
the payment of the interest upon the P10,000 legacy; according to
the last-named article it is clear that the opponent is not entitled to
the interest claimed. In Fuentes vs. Canon (6 Phil., 117), and Chiong
Joc-Soy vs. Vaño (8 Phil., 119), the Supreme Court ruled that generic
legacies or legacies of quantity, like the one adjudicated to the
opponent, do not draw legal interest until a demand is made for
them: and a legacy cannot be legally demanded before the scheme
of partition is duly approved by the probate court. And in the case
cited by counsel for Fred Frankel (Ongpin vs. Rivera, 44 Phil., 808),
the Supreme Court held that a cash legacy does not earn interest
until the person bound to deliver it — in this case the judicial
 administrator — is in default. The administrator in the present case is
not in default, for the scheme of partition not only has not yet been
approved, but is actually the subject matter of many oppositions filed
by the legatees and the heir." (Pp. 52, 53, and 54, Bill of
Exceptions.)
 
Finding the order appealed from to be justified by the merits of the case, we
hereby affirmed it, with costs against the appellants. So ordered.
Avanceña, C.J., Street, Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.