G.R. No. L-45166; April 19, 1939
In the Matter of the Will of the deceased Flora Viardo. LEON C. VIARDO, applicant-appellee, vs. GALICANO GUTIERREZ, administrator-appellant.

FACTS

Flora Viardo and others filed a complaint against Leon Viardo for partition of property and rendition of accounts. Leon Viardo filed a counterclaim for P2,184.48 against Flora Viardo and her husband Galicano Gutierrez. During the pendency of the partition case, Flora Viardo died. Her will was probated, and Galicano Gutierrez was appointed judicial administrator of her estate. The trial court ordered Gutierrez, as administrator, to pay Leon Viardo the amount of the counterclaim. Gutierrez appealed, arguing the court lacked jurisdiction because the claim should have been dismissed and presented instead to the commissioners on claims in Flora Viardo’s testate proceedings.

ISSUE

Whether the trial court in the partition case retained jurisdiction to order payment of Leon Viardo’s counterclaim against the deceased Flora Viardo’s estate, or whether the claim should have been dismissed and filed separately in the testate proceedings.

RULING

The trial court retained jurisdiction and its order was valid. While Section 119 of the Code of Civil Procedure generally requires dismissal of a money claim against a party who dies during pendency of the action, Section 701 of the same Code provides an exception for claims that have been filed as a counterclaim. Since Leon Viardo’s claim was properly filed as a counterclaim in the pending partition case, it was not subject to dismissal and need not be filed separately with the commissioners on claims in the testate proceedings. The appealed judgment was affirmed.

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