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[ GR No. 45264, Aug 22, 1936 ]



63 Phil. 349

[ G. R. No. 45264, August 22, 1936 ]




This is a  motion filed by the attorneys for the appellee to dismiss the appeal.  The court has had it under advisement and finds no merit therein.  The result is that  the motion will be denied.

Pursuant to section 34 of the Rules of Courts of First Instance in relation to sections 779 and 780 of the Code of Civil Procedure, the record on appeal in special proceedings may be filed within  ten (10) days from the date the  appeal bond  is  approved, which is  the date on  which an appeal in said proceedings is deemed  perfected (Feliciano vs.  Calimbas  and Zandueta, 60 Phil.,  509).   In the case at bar,  the  appeal bond was approved by the trial court on June  22, 1936, and the record on appeal was filed nine days  before, that is, on June  13, the appellants having waived their right to use the ten-day period granted them by the said section 34 of the Rules of Courts of First Instance.

It is  contended by the  appellee that Rosario  de Leon had  died before the appeal interposed in  her name  was presented, and that her administratrix had not taken any step to prosecute the said appeal  and that, therefore,  the appellants are not the  proper parties in  this appeal.   It appears, however, that the herein appellants are the lawful heirs of Rosario de Leon and that the intestate proceedings for the distribution of her estate,  which were  pending  for some time  in  the  Court of First Instance of Manila, had already been  closed, the  administratrix relieved of her duties as such and discharged, and said estate distributed among the lawful heirs of Rosario de Leon.  The  words "or other legal representative of  the deceased" as used in section 32 of the Rules of Courts of First Instance may be construed  to include,  under the circumstances of the case,  the legal heirs of Rosario de Leon.

The rights of the appellants to the succession of Rosario de Leon  vested in them immediately from the time of  the latter's  death  (art. 657, Civil  Code; Mijares  vs. Nery, 3 Phil., 195; Suiliong  &  Co.  vs. Chio-Taysan, 12  Phil., 13; Lubrico  vs. Arbado, 12 Phil., 391; Inocencio  vs. Gat-Pandan, 14 Phil.,  491; Aliasas vs. Alcantara,  16 Phil., 489; Sy Joe Lieng vs. Encarnacion, 16 Phil., 137; Irlanda vs. Pitar- gue, 22 Phil., 383; Nable Jose vs. Uson, 27 Phil., 73; Beltran vs. Doriano, 32 Phil., 66; Bona vs. Briones, 38 Phil., 276). In the absence of debts the heirs (all  of age) may enter immediately upon the administration of the property of their ancestors without the  intervention of an administrator. In such a case there is no reason why the estate  should be burdened with the costs and expenses of an administration. (Iiustre vs. Alaras Frondosa, 17 Phil., 321; Bondad vs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Buenaventura and Del Rosario vs. Ramos, 43 Phil., 704.)

The fact that the administratrix of the estate of Rosario de Leon did not before her discharge prosecute this appeal was no legal  obstacle to her  lawful heirs prosecuting it. In Del Rosario vs. Del Rosario (2 Phil., 321), it was held that when the executor of an estate dies pending the "determination of an appeal from a judgment rendered against him and in favor of a legatee  and the latter succeeding as executor dismisses the  appeal, an order  may be, granted permitting any interested party to prosecute the appeal. This ruling is in conformity with the provision of section 783 of the Code of Civil Procedure to the effect that  any person legally interested in any order, decree, or judgment of a Court of First Instance in the exercise of its jurisdiction in special proceedings, may appeal from such order, decree or judgment.

It is further argued by counsel for appellee that the real contention of Rosario de Leon in the lower court was that the estate left by Jose F. de Leon should  be escheated to the State.  This is denied by the appellants.  We are of opinion that this question should be decided when the appeal is considered upon its merits,  and not in the resolution of a motion to dismiss the appeal.   The movant finally maintains that the appeal bond has not been properly  executed. This bond was approved by the trial court apparently without any objection on the part  of the appellee.  Any defect in the appeal  bond may  be  cured upon  motion.  It cannot be made the basis for dismissing the appeal.

The title of the case will be changed by substituting the names of the herein appellants for that of Rosario de Leon, deceased, and let the appeal follow its regular course.  So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ.,  concur.