G.R. No. L‑3516
November 16 1907

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FACTS
– Petitioner: Felisa Nepomuceno (widow of Sixto Almeda Carlos, son of the decedent).
– Respondent: Cirilo A. Carlos, appointed executor of the will of Agaton Almeda Carlos (deceased 1875).
– In 1901 Nepomuceno filed a petition under the probate jurisdiction of the Court of First Instance (CFI) of La Laguna, seeking an accounting of the estate and asking that Carlos be removed as executor.
– The CFI ordered Carlos to file accounts; after a commissioner’s report the court rejected his accounts, removed him as executor, and ordered the appointment of a new administrator.
– Carlos appealed, asserting that no judicial proceeding for settling Agaton’s estate was pending in 1901; the estate had been partitioned by agreement of the heirs in 1883‑1890, terminating the executorship.
– The lower court held that a probate proceeding was pending and affirmed its jurisdiction.

ISSUE
Whether the Court of First Instance possessed probate jurisdiction over the petition filed in 1901, i.e., whether a judicial proceeding for the settlement of Agaton Almeda Carlos’s estate was pending at that time.

RULING
– The Supreme Court held that no proceeding for settlement of the estate was pending in 1901.
– The executor’s appointment (1875) and the extrajudicial inventory did not constitute a pending court action.
– The heirs had contracted a partition in 1883‑1890, fully liquidating the estate and terminating the executorship; thereafter the heirs held the remaining property as joint owners.
– Probate jurisdiction cannot be created by the parties’ consent; absent a pending proceeding, the CFI lacked jurisdiction.
– The order of the CFI is reversed. The case is remanded with directions to dismiss the petition for lack of jurisdiction, costs against the petitioner, without prejudice to the filing of an ordinary action to protect her interests.

Concurrence: Chief Justice Arellano, and Justices Torres, Johnson, and Tracey.