[ G.R. No. L-1379. December 19, 1947 ] 79 Phil. 748
[ G.R. No. L-1379. December 19, 1947 ]
SOPHIE M. SEIFERT AND ELISA ELIANOFF, PETITIONERS, VS. MARY MCDONALD BACHRACH, IN HER CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF THE DECEASED E. M. BACHRACH, AND CONRADO BARRIOS, JUDGE OF FIRST INSTANCE OF MANILA, RESPONDENTS. D E C I S I O N
PERFECTO, J.:
Petitioners, sisters and heirs of the late E. M. Bachrach, who died in Manila on September 28, 1937, pray for a command from this Court calculated to compel the lower court to execute its order of October 2, 1940, which reads as follows:
“Upon consideration of the petition of Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine, of September 16, 1940, wherein they pray that the administratrix and usufructuary of the properties left by the deceased E. M. Bachrach be authorized to pay them, beginning July 1, 1940, and until they receive their share of the estate left by the deceased E. M. Bachrach upon the death of his widow, a monthly allowance of P500; P250; P250; and P250, respectively, and the additional sum of P3,000 to the said Sophie M. Seifert, who is in poor health, the said allowances to be deducted from their shares of the estate of the deceased E. M. Bachrach upon the death of his widow, Mary McDonald Bachrach;
“All the parties interested in the estate left by the deceased E. M. Bachrach having expressed their conformity to the said petition, and there existing no reason why the same should not be granted.
“Petition granted; and the administratrix and usufructuary Mary McDonald Bachrach is hereby authorized and instructed forthwith to pay to the said Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine a monthly allowance of five hundred (P500) pesos; two hundred fifty (P250) pesos; two hundred fifty (P250) pesos; and two hundred fifty (P250) pesos, respectively, beginning July 1, 1940, and until the said heirs receive their share of the estate left by the deceased E. M. Bachrach upon the death of his widow, and the additional sum of three thousand (P3,000) pesos to the heir Sophie M. Seifert.
“The payment of the monthly allowances herein granted to the said heirs Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and Annie Bachrach Levine other than those corresponding to the months of July, August and September, shall be made on or before the 5th day of each month, beginning October, 1940; shall be taken from the properties to be turned over to the heirs of the deceased E. M. Bachrach and the usufruct of which will belong to his widow, Mary McDonald during her life; and shall be deducted from the share of the said heirs of the estate of the deceased E. M. Bachrach upon the death of his widow.
“Upon verbal petition of Attorney Carrascoso, and it appearing from the record that two of the clients whom his law firm represents reside outside of the Philippines, the administratrix and usufructuary, Mary McDonald Bachrach, is hereby authorized and instructed to pay directly to Attorneys Ross, Lawrence, Selph & Carrascoso the monthly allowances corresponding to the heirs Sophie M. Seifert, Ginda M. Skundina, and Elisa Elianoff.
“No opposition having been filed to the amended report, rendition of accounts, and liquidation of the community property of the conjugal partnership of E. M. Bachrach, deceased, and Mary McDonald Bachrach as surviving spouse presented by the administratrix under date of September 17, 1940, the same are hereby approved and granted. It is so ordered.”
“QUIRICO ABETO “Judge”
The petition in virtue of which the above order was issued and to which all the interested parties in the estate have expressed their conformity, as stated in the order, reads as follows:
“Comes now Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff, and Annie Bachrach, and to this Honorable Court respectfully state:
“1. That paragraph sixth and eighth of the will of the deceased E. M. Bachrach provide as follows:
" ‘Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the remainder of all my estate after payment of the legacies, bequests and gifts provided for above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.’
" ‘Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real and otherwise, and all the fruits and usufruct thereof which during her life pertained to her, shall be divided as follows:
" ‘One-half (1/2) thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case she fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall distribute it, share and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the Philippines or of the United States:
" ‘One-half (1/2) thereof shall be divided, share and share alike by and between my legal heirs, to the exclusion of my brothers.’
“2. That on July 22, 1940, this Court entered the following order:
" ‘It appearing from the report filed by the commissioner, the Acting Assistant Clerk of the Court, that the only heirs of the deceased E. M. Bachrach, according to the evidence presented, are his widow Mary McDonald Bachrach and his sisters Sophie M. Seifert, Annie Bachrach, Ginda Skundina and Elisa Elianoff, the Court hereby declares said Mary McDonald Bachrach, Sophie M. Seifert, Annie Bachrach, Ginda Skundina and Elisa Elianoff as the only legal heirs of said deceased, all of whom are of legal age.
" ‘So ordered.’
“Your petitioners who are the legal heirs of the deceased E. M. Bachrach beside his widow, Mary McDonald Bachrach, respectfully request that she, as administratrix and usufructuary of her deceased husband’s properties, be authorized to pay your petitioners from and after July 1, 1940, and until they receive their share of the estate left by the deceased E. M. Bachrach upon the death of his widow, a monthly allowance of P500, P250, P250, and P250, respectively, and the additional sum of P3,000 to the heir Sophie M. Seifert, who is in poor health, the said allowances to be deducted from your petitioners’ share of the estate of the deceased E. M. Bachrach upon the death of the widow;
“All parties interested in the estate left by the deceased E. M. Bachrach are agreeable to this petition.
" Manila, September 16, 1940.
“ROSS, SELPH, CARRASCOSO & JANDA
By (Sgd.) “ANTONIO T. CARRASCOSO, Jr. Attorneys for Ginda M. Skundina,
Elisa Elianoff, and Sophie Seifert
414 National City Bank Bldg., Manila
“We agree:
(Sgd.) “ANNIE BACHRACH (Sgd.) “MARY MCDONALD BACHRACH Administratrix and Usufructuary (Sgd.) “ROMAN OZAETA “Solicitor General”
No appeal has been taken against the foregoing order by any party.
From July 1, 1940, to December 31, 1941, the administratrix, respondent Mary McDonald Bachrach, made the payments as ordered. According to respondents, the total amount paid amounted to P40,250. The monthly allowances or advances due from January 1, 1942, to July 31, 1945, were not paid. The total amount is P32,500 or P21,500 for Sophie M. Seifert and P10,750 for Elisa Elianoff. Payments were resumed from August, 1945, to January, 1947. Petitioners have been demanding from respondent Mary McDonald Bachrach the payment of the monthly allowances from January 1, 1942, to July 31, 1945, but respondent refused to pay. As alleged in her memorandum, the executrix “decided to stop the payment”, among several reasons, in view of the “inconsiderate, unappreciated and unkind attitude” of petitioners, the increasing burden on Mrs. Bachrach’s usufruct, and improbability of reimbursement to the estate of the payments and of the return to the executrix of the usufructuary value of said allowances.
On February 18, 1947, petitioners filed with the lower court a petition for the issuance of a writ of execution ordering, on the authority of the order of October 2, 1940, the administratrix to pay the allowances for February, 1947, and those in arrears for the period comprising January 1, 1942, to July 31, 1945, and that in case the administratrix should fail to pay the above amounts within 24 hours after receipt of notice, the Hongkong and China Banking Corporation be ordered to deliver to attorneys for petitioners the total sum of P33,000, to be withdrawn from the funds that the administratrix has on deposit in said bank in the name of the estate of E. M. Bachrach.
The petition was denied on February 27, 1947. On March 4, 1947, petitioners filed a motion for the reconsideration of said order. On March 14, 1947, the motion for reconsideration was denied. Not satisfied with the orders of February 27, and March 14, 1947, of the lower court, petitioners filed with us the petition in this case.
For a proper understanding of the controversy we quote hereunder the text of the will of E. M. Bachrach:
“I, E. M. Bachrach, a naturalized American citizen from the State of New York and resident of the City of Manila, Philippine Islands, being of sound and disposing mind and memory and not acting under duress, menace, fraud or undue influence of whatever nature, do hereby make, publish and declare the following to be my Last Will and Testament, to-wit:
“First: I hereby declare that I have no child or children, grandchild or granchildren.
“Second: My failure to make any provision in this Will for my brothers is intentional.
“Third: I hereby revoke and cancel any and all Wills by me heretofore made.
“Fourth: I hereby bind, obligate, and instruct my executors or administrators to make and pay the following bequests, legacies or gifts, to-wit:
“(a) To Mary McDonald Bachrach, my beloved wife, I give one-half (½) of the proceeds of the house known as “Casa Blanca,” my residence at 105 Manga Avenue, Sta. Mesa, Manila, and of the rights to the lease on the parcel of land wherein said house is built. As all the furniture, fixtures and silverware contained in the house were bought by my beloved wife Mary McDonald Bachrach out of her own personal funds, and furniture, fixtures and silverware, being her own property, I hereby order that the same be returned to her and disposed of by her as she may wish and for her own benefit.
“(b) To Mary McDonald Bachrach, my beloved wife, I give an allowance of five hundred pesos (P500) each month as living expenses.
“(c) To Mina Levine, daughter of Hyman Levine, the sum of ten thousand pesos (P10,000) to be paid to her upon my death.
“(d) To Hyman Levine, the sum of one thousand pesos (P1,000) for each year of service he has given me or the Bachrach Motor Co., Inc., that is one thousand pesos (P1,000) for each year since January, 1917, when he entered the employment of the Bachrach Motor Co., Inc.
“(e) To Martin Elianoff and his wife Luba Elianoff, the sum of Ten Thousand Pesos (P10,000) jointly.
“(f) To Afna Elianoff, daughter of Martin Elianoff, the sum of Ten Thousand Pesos (P10,000) which amount is to be deposited in any bank her father may choose, and is to be used for her education and upon her becoming of age, she may withdraw and use the remainder thereof if any, as she may deem fit.
“(g) To Temple Emil Congregation, the sum of ten thousand pesos (P10,000).
“(h) To Sofie Seifert, wife of John Seifert, now residing at San Francisco, California, the sum of ten thousand pesos (P10,000).
“(i) To Ginda Scundin, married to Henoch Scundin, now residing at Kiev, Russia, the sum of ten thousand pesos (P10,000).
“(j) To Lisa Elianoff, widow of Abraham Elianoff, now residing at Moscow, Russia, the sum of ten thousand pesos (P10,000).
“Fifth: I hereby choose and appoint my beloved wife, Mary McDonald Bachrach, as my administratrix and executrix to hold, keep, possess and invest all my remaining properties for the benefit and advantage of the estate.
“Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the remainder of all my estate after payment of the legacies, bequests and gifts provided for above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.
“Seventh: It is my express wish that the business of the Bachrach Motor Co., Inc., the controlling shares of which I hold and own, shall not be dissolved, disposed of, or discontinued for a period of at least FIVE years after my death, unless the company is conducted at a losing basis; and the payment of the bequests, legacies and gifts above mentioned shall be made from my income and estate as shall least disturb or disrupt the business of the Bachrach Motor Co., Inc., as a going concern;
“Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real and otherwise, and all the fruits and usufruct thereof which during her life pertained to her, shall be divided as follows:
“One-half (½) thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case she fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall distribute it, share and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the Philippines or of the United States;
“One-half (½) thereof shall be divided, share and share alike by and between my legal heirs, to the exclusion of my brothers.
“Before signing this Last Will and Testament, I hereby declare that I have read and understood each and every provision hereof, and hereby publish and declare the same as my Last Will and Testament.
“Done in this City of Manila, this 3d day of December, 1935.
(Sgd.) “E. M. BACHRACH”
The following facts can also be taken into consideration: (1) A report filed by respondent Mary McDonald Bachrach on January 24, 1941, giving in detail a list of properties belonging to the heirs of E. M. Bachrach, shows a total value of P1,069,494.34; (2) The administratrix has in her possession the sum of P351,016.91; (3) The administratrix has made “all the transfers or is proceeding with the transfers in the name of the estate of E. M. Bachrach for the heirs of the said E. M. Bachrach,” of the properties whose total value according to the last project of partition is P1,069,494.34; (4) Among the properties in the possession of the administratrix is the sum of P351,016.91 which has already been adjudicated to, and belongs, although still pro indiviso, to the heirs of the deceased E. M. Bachrach, from which, according to petitioners, the monthly allowances due to petitioners should be paid in accordance with the order of October 2, 1940; (5) Petitioners allege that the monthly allowances due them shall not be taken from the one-half of the properties amounting to P1,069,494.34 which is the share of the charitable hospitals, but from their respective participations in said property; (6) The Solicitor General agreed to the payment of the monthly allowances as per his conformity signed at the bottom of the petition of September 15, 1940; (7) Respondent Mary McDonald Bachrach has made advance payments to charitable institutions amounting to P22,000 from the participation of the charitable hospitals without prior authority from the probate court; (8) On May 27, 1947, the Solicitor General filed a manifestation undoubtedly for the protection of one-half of each and every asset of the estate of the deceased E. M. Bachrach, belonging to the charitable hospitals, in accordance with the eighth clause of the will; (9) On June 9, 1947, petitioners answer by stating that their monthly allowances shall not be taken from the shares or participation belonging to the charitable hospitals but from petitioner’s participation or interest in the other one-half of the estate of E. M. Bachrach which belongs to the heirs of the deceased; (10) On June 11, 1947, the Solicitor General filed an additional manifestation in which it expresses its satisfaction over the statement made by petitioners on June 9, 1947.
There is no question that the monthly allowances provided in the order of October 2, 1940, were agreed upon by all the parties for the maintenance of the four sisters of the deceased E. M. Bachrach, including herein petitioners. In the order of February 27, 1947, Judge Conrado Barrios found that the heirs-petitioners Sophie M. Seifert and Elisa Elianoff “are in dire need of funds for support.”
Several reasons are advanced by respondents in their opposition to the compliance with and execution of the order of Judge Abeto dated October 2, 1940. We shall pass upon the important ones.
They allege that the conformity given by Mary McDonald Bachrach to the petition of September 16, 1940, as well as the payments made by her of the monthly allowances under the order of October 2, 1940, “was an act of pure liberality on her part and, therefore, could not be construed as giving rise to any obligatory relations between said respondent executrix and the parties receiving said monthly allowances.” The allegation is unacceptable. Conformity is consent. According to a universal law, recognized in our Civil Code, consent is the source of obligations. That respondent has given her conformity as an act “of pure liberality on her part” does not change the nature of the legal effect of the consent given. The commitment she made with her conformity cannot be dismissed upon the ground that it was given as “pure liberality” or for any other motive. Provided the consent was freely given, and regardless of the motive behind the act, it gives rise to all proper legal effects. The conformity or agreement of all the parties to the petition of September 16, 1940, gives it the nature of a contract. The contracting parties are bound to respect and to abide by the commitments in said contract. The contract cannot be lightly dismissed. Respondent’s allegation that Mary McDonald Bachrach had given her conformity without any consideration, is belied by her own allegation to the effect that she gave said conformity as “an act of pure liberality on her part.” Pure liberality is a consideration recognized by the Civil Code. No other consideration is entertained in donations. The contract in this case has the added force and solemnity of having been approved by the order of Judge Abeto of October 2, 1940. The contract has been elevated to the category of a judgment. Its enforceability depends not only on the good faith of the parties but on a legal and executory order issued by a competent court. While respondent Mary M. Bachrach cannot ignore her plighted word, she has absolutely no right to consider the order of October 2, 1940, as a mere scrap of paper. Otherwise, if their orders could be simply ignored, challenged or taken with scorn, there is no use for the existence of courts.
Respondents alleged that “there is no provision in the will of the deceased E. M. Bachrach or in any statute requiring” the payment of the monthly allowances provided in the order of October 2, 1940. But is there any prohibition for the parties to agree in the payment of said monthly allowances? Was there any reason for the lower court to withhold its approval to the agreement? The allegation seems to imply an argument based on the denial of the basic right of the parties to enter into any kind of agreement neither forbidden by law nor against public morals.
The respondents alleged that the order of October 2, 1940, “was not intended to be a judicial mandate but merely an authority for the respondent Mary McDonald Bachrach to do certain acts which she could not perform under the law or under the provisions of the will of the deceased E. M. Bachrach without judicial authority.” The allegation finds no support in the order wherein Mary McDonald Bachrach is “authorized and instructed forthwith to pay” the monthly allowances in question. Instructed means commanded. The inclusion of the last word negatives respondent’s allegation. Mary McDonald Bachrach did not appeal against the order. She cannot now deny validity to the command involved in the word “instructed.” Besides, an “order”, the title of the document, cannot be anything other than a mandate, compulsory by nature.
Impairment of her usufruct is also alleged by the administratrix. How can she now complain of the alleged impairment after alleging that she gave her conformity to the agreement, the basis of the order of October 2, 1940, as “an act of pure liberality on her part?” Was she not the owner of her usufruct? Could she not give away her usufruct or any part of it in favor of any person? If she disposed of a portion of said usufruct for the benefit of the sisters of her deceased husband, without being subject to compulsion, or fraud, or mistake, but freely and conscientiously, there is no reason for her to complain now. When she gave her conformity to the petition upon which the order of October 2, 1940, was issued, she did it undoubtedly in the same spirit of charity with which her deceased husband, E. M. Bachrach, had written his will. She deserves commendation for the beauty of her act in seconding the attitude of helpfulness of her husband towards the petitioners. Charity is the choicest flower of the human spirit. While the late E. M. Bachrach and his widow were concerned in helping charitable hospitals, they did not forget the needy sisters of the deceased, as charity must start at home. We are not willing to help respondent withdraw now what she has given to petitioners voluntarily and with noble spirit of liberality.
Because petitioners perfected an appeal against the order of the lower court granting the administratrix the authority prayed for in her petition of February 19, 1947, to sell “the portion of the estate destined for charity,” respondents complain that petitioners have improperly and against the principles of orderly procedure, split the order of October 2, 1940, and simultaneously perfected an ordinary appeal from a part of the order of February 27, 1947, and filed the present petition for a writ of mandamus in connection with the other part. The complaint is groundless. The present petition refers to the execution of the order of October 2, 1940, while the appeal in question has been filed against the order of February 27, 1947, granting the executrix’s petition dated February 19, 1947, the basic pleading in the record on appeal of March 31, 1947.
The last important argument of respondents is that no execution can validly be issued in connection with the order of October 2, 1940, because of the moratorium provided in Executive Order Nos. 25 and 32, which is still in full force and effect. The allegation cannot be entertained. The monthly allowances provided in the order of October 2, 1940, are not among the money obligations for which a moratorium has been decreed. The allowances in question are advances of an inheritance. They have been paid and are to be paid to petitioners as advances of the respective shares in the estate of their deceased brother E. M. Bachrach. They are not debts. The moratorium refers to debts. It is enough to look at the title of the executive orders in question.
Section 1 of Rule 39 provides:
“Execution as of right.—Execution shall issue upon a final judgment or order upon the expiration of the time to appeal when no appeal has been perfected.”
The provision is mandatory. There is no question that the order of October 2, 1940, has become final. Upon the facts in this case and the law applicable thereto, it is the ministerial duty of the lower court to order the execution of October 2, 1940. Failure to comply with said ministerial duty is a proper case for mandamus.
For all the foregoing, we grant the petition, and the respondent lower court is ordered to proceed with the execution of its order of October 2, 1940, and to issue the proper writs.
Paras, Bengzon, and Tuason, JJ., concur.
FERIA, J.:
I concur in the result.