G.R. No. L-28296 November 24, 1972
CELESTINO C. HERNANDEZ, et al., petitioners, vs. THE HONORABLE PEDRO C. NAVARRO, Judge of the Court of First Instance of Rizal (Pasig) and DOLORES MOJICA VDA. DE HERNANDEZ, respondents.

FACTS

Petitioners, the children of the deceased Maximo C. Hernandez, Sr., opposed the probate of his alleged will and the appointment of respondent Dolores Mojica Vda. de Hernandez as executrix. The respondent judge issued an order on April 24, 1967, admitting the will to probate and appointing the respondent widow as executrix. Petitioners filed a motion to set aside this order, which the court denied in an order dated June 29, 1967. This denial order was sent by registered mail to petitioners’ counsel. According to postal certification, the notice was delivered to a representative at the counsel’s address on July 24, 1967. Petitioners filed their notice of appeal, appeal bond, and record on appeal on August 9, 1967. The respondent judge refused to give due course to the appeal, declaring the probate order final and executory. Petitioners thus filed this mandamus action to compel the judge to allow their appeal.
The petitioners also challenged the appointment of the executrix, arguing it was made without a hearing and without receiving evidence on her competency and fitness, despite their formal opposition. The respondents countered that the appeal was perfected out of time, as the period should be counted from an earlier date, and that the filed documents were fatally defective for various procedural reasons, including the failure of the notice of appeal to specify the parties and the record on appeal to show timeliness on its face.

ISSUE

The primary issue is whether the petitioners perfected their appeal on time by filing the requisite documents on August 9, 1967. A secondary issue is the propriety of the executrix’s appointment without a hearing on her competency.

RULING

The Supreme Court granted the petition for mandamus. On the timeliness of the appeal, the Court ruled that the period to appeal was interrupted by the filing of the motion to set aside the April 24 order. The reglementary period resumed upon counsel’s receipt of the denial order on July 24, 1967. Counting the remaining sixteen days from that date, the filing on August 9, 1967, was the thirtieth and final day, making the appeal timely perfected. The Court found the respondent judge’s declaration of finality in his June 29 order to be a legal error, as the motion to set aside, while not a motion for new trial, was a valid motion for reconsideration that tolled the running of the appeal period.
Regarding the ancillary issue of the executrix’s appointment, the Court, while noting that mandamus was not the strictly proper remedy for this particular grievance, addressed it to avoid prolonging the litigation. The Court held that the appointment of an executrix, especially when her competency and suitability are directly challenged by oppositors, should not be made summarily without a hearing. The testator’s designation in the will does not preclude an inquiry into the appointee’s fitness when actively opposed. The Court directed the respondent judge to conduct a hearing to receive evidence on the alleged incompetence and unsuitability of the appointed executrix, after which a proper order should be issued, subject to available remedies. The respondent judge was ordered to give due course to the petitioners’ appeal.