Mcmicking vs.

Jose McMicking v.
Benito Sy Conbeing
Facts:
In 1902 Margarita Jose died and Engacio Palanca was appointed as the
administrator with will annexed of the formers estate with Mariano Ocampo Leo
Sempco and Dy Cunuao as the surities. After the execution of bond of Palanca, the
latter tool possession of the property of the deceased. In 1904, Mariano Ocampo
Lao Sempco deid in the City of Manila. The Court of First Instance made an order
directing Palanca to furnish a bond to take the place of the undertaking upon which
said Mariano Ocampo and Dy Cuyao. The bond thus required was duly filed and the
new surities thereon being Juan Fernandez, Luis Saez de Vismanos and Alejandro
Palanca.
In the same year 1904, Doroteo Velasco was appointed as administrator of Mariano
Ocampo Lao Sempco and Mariano Velasco and Pio de la Guardiaas surities of the
administrator. Doroteo Velasco as administrator filed with the curt a complete report
and inventory of the propery of the deceased, together with a statement of all his
debts and liabilities. As a part of this report and inventory said administrator filed an
instrument signed by all the persons interested in the estate of Mariano Ocampo
agreeing to the partition of the estate among themselves without proceedings in the
court at the same time assuming the payment of the obligations against the estate.
The CFI upon the request of the administrator and of all parties interested in the
estate of Mariano Ocampo, enteredan order in said afreement. Pursuant to such
agreement and order of the court approving the same, Doroteo delivered to the
divisees and legatees of Ocampo all the properties of the said decedent consistent
to the terms f the agreement of partition leaving in the hands of the administrator
no property or thing of value whatsoever belonging to the estate. From that time
toward said administrator has not had his possession and control any of the assets
of the saod estate and has not had any particiapation in the management thereof.
At the time the agreement for participation was made and signed and at the time of
the distribution of the property of the estate pursuant thereto, no committee had
been appointed to hear the claims against the estate of Mariano Ocampo and no
notice had been published to creditors of the deceased to present their claims
against the estate in the manner prescribed by law.
IN 1908, Palanca was remeoved from office as administrator of the estate of
Margarita Jose and Jose McMicking was appointed in his stead. Palanca refused to
render an account of the property and funds of the estate, instead of doing so, he
retained possession of the property and funds, absconded with the same and never
returned to the Philippine Islands. In 1909, Jose McMicking as the administrator
made an application to the court for the appointment of commissioners of the
wstate for the purpose of hearing of claims against the estate. The commission
having appointed and qualified, a claim was presented to it by the plaintiff based
upon the defalcation of said Engracio Palanca as administrator which claim was
alloed by said commission and later approved by the court, which directed that the
said claim be paid by Doroteo Velasc0 if he had sufficient funds to made such
payment. Nor part of the sum thus found to be due by the commission has been
paid to the representative of the estate of Margarita Jose. In 1905, Pio de le Barretto
died and letters of administration were issued to Benito Sy Combeing. In 1909, upon
the application of McMicking, a committee was appointed by the CFI Manila to
appraise the estate of the said Pio de la Guardia Baretto and to hear cliamis
presented against his estate. The claim so presented against the estate of Pio was
disallowed by the committee.
It is disputed in the case that all of the claims against the estate of Mariano Ocampo
were fully paid and satisfied at the time of the partition of said estate, with the
exception of the alleged claim arising by virtue of his having been a surety of the
default Palanca. It nowhere appears in the evidence or the record exactly when this
claim arose it may be inferred from the time of presentation in 1909, and we have
no means of determining whether the defalcation represented by the said claim

occurred before or after the substitution of sureties herefore referred to.
Held:
Doroteo Veleasco for whom the deceased Pio de la Guardia Barreto was surety,
would not have been liable himself had this action commenced against him. If the
principal is not liable upon the obligation, the surety cannot be. At the head of the
law of administration of the Philippine Islands stands sections 596 and 597 of the
Code of Civil Procedure:
SEC. 596. Settlement of intestate estates, without legal proceedings, in certain
cases. Whatever all the heirs of a deceased person are of lawful age and legal
capacity, and their are no debts due from the intestate estate, or all the debts have
been paid by the heirs, the heirs may, by a family council as shown under Spanish
law, or by agreement between themselves, duly executed in writing, apportion and
divide the estate among themselves, as they may see fit, without proceedings in
court.
SEC. 597. In such case distributees liable for debts. But if it shall appear, at any
time within two years after such settlement and distribution of the estate, that there
are debts outstanding against the estate which have not been paid, any creditor
may compel the settlement of the estate in the courts in the manner hereinafter
provided, unless his debt shall be paid, with interest; and the administrator
appointed by the court may recover the assets of the estate from those who have
received them, for the purpose of paying the debts; and the real estate belonging to
the deceased shall remain charged with the liability to creditors for the full period of
two years after such distribution, notwithstanding any transfers thereof that may
have been made.
These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reason and then only
so long as is necessary to make the rights which underlie those reasons effective. It
is a principle of universal acceptance which declares that one has the instant right
to occupy and use that which he owns, and it is only in the presence of reasons of
the strongest and most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which gave birth to this
stern and imperious principle is the same force which destroyed the feudal
despotism and created the democracy of private owners.
In the case at the bar we are of the opinion that, under the broad and liberal policy
which we must adopt in the interpretation and application of the provisions referred
to, the decision of the property of Mariano Ocampo, deceased, in the form, in the
manner and for the purposes expressed, falls within the provisions of said sections
and may be termed, therefore, and we hold it to be, a partition of the property of a
decedent without legal proceedings within the meaning of those sections. The fact
of the prior appointment of an administrator and the filing of an inventory before
such partition is of no consequence so far as the right of the owners to partition is
concerned. The only requisite for such petition prescribed by the law is that "there
are no debts . . . or all the debts have been paid by the heirs." When the condition is
fulfilled the partition can take place, no matter what stage the administration may
have reached. By this it is, of course, not meant that the partition after the
appointment of an administrator will interfere with the rights acquired by third
person dealing with said administrator within the limits of his authority and prior to
the partition; nor that the administrator can be deprived of the property of which he
is legally in possession without proper proceedings and the consent of the court.
Moreover,, the sureties of an administrator cannot be held liable for property which
be force of law has been take from the principal and its ownership and control
turend over to others. Their obligation is that their pricipla shall obey the law in the
handling and distribution of the estate. Their obligation is discharged when the
estate is legally turned over to those entitled thereto. The law requires the principal
to turn it over to thise who bring themselves within the probision of secition 596.
Having turned over the whole estate under the compelling power of the law, his
obligation ceased.

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Jose McMicking v.

no means of determining whether the defalcation represented by the said claim

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