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[IN RE WILL OF HENRY W. ELSER v. ELAINE CHILDS ELSER](https://www.lawyerly.ph/juris/view/c1225?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 24659, Feb 15, 1926 ]

IN RE WILL OF HENRY W. ELSER v. ELAINE CHILDS ELSER +

DECISION

48 Phil. 708

[ G.R. No. 24659, February 15, 1926 ]

IN RE WILL OF HENRY W. ELSER, DECEASED. C. W. ROSENSTOCK, EXECUTOR AND APPELLEE, VS. ELAINE CHILDS ELSER, APPELLANT.

[G.R. NO. 24867]

IN RE WILL OF HENRY W. ELSER, DECEASED. ELAINE CHILDS ELSER, PETITIONER AND APPELLANT, VS. C. W. ROSENSTOCK, EXECUTOR AND APPELLANT.

D E C I S I O N

JOHNS, J.:

STATEMENT

Upon the  death of Henry  W.  Elser, and on June  21, 1923, C. W. Rosenstock filed a petition in the Court of  First Instance  of  Manila for  the probate of  Elser's will, and that he, Rosenstock, be appointed as executor of the estate.

August 18,1923, Judge Diaz admitted the will to probate, and  appointed Rosenstock  as executor, who later qualified and entered  upon the discharge of his duties.

August 30, 1923, the executor filed the following petition:
"Comes now the executor in the above-entitled case and shows the court:

"1. That the work  of administering the above-entitled estate is such as to require an unusual amount of time of the executor, owing to the  size  and  involved condition of the estate.

"2. That as manager of the business of the deceased and for administering the said as guardian of  the deceased immediately prior to his death and for administering the said estate as special administrator, after the death of the deceased and before the probate of the  will of the deceased, the administrator was  allowed one thousand pesos (P1,000) per month.

"3. That all parties in the Philippines of interest in the above-entitled case  have agreed  that the  said  sum  of P1,000 per  month,  as compensation for the executor, is just and reasonable.

"Wherefore, the  executor  prays the  court  that the executor be allowed  P1,000  per month as compensation as administrator of  the estate  in  the above-entitled case." October 3, 1923, the court made the following order:

"It appearing from the inventory of the estate filed by the executor  and appraised by the committee appointed for the purpose,  that the estate in the above-entitled case is unusually large and involved; it further appearing that notice of the said petition  was duly  served upon  all interested parties in the Philippine Islands, who not only did not oppose  the petition  but joined in the prayer  of the same; and it appearing that the compensation asked, in view of the circumstances of the case, is reasonable, and it appearing further that the guardian ad litem of the minor interested in this case, Frederick Johnson Elser, has expressed his  concurrence in the petition referred to  of the executor herein; no reason appearing why the said petition should not be granted, let the  same be granted."
April 15, 1925, the widow of Mr. Elser filed a petition asking that the order of October 3, 1923, be revoked, and that the compensation of the executor should  be based upon the provisions  of section 680 of the  Code  of Civil Procedure.

June 13, 1925, Judge  Imperial  revoked  the  order  of October 3, 1923, and fixed the compensation of the executor at P400 per  month, commencing  with  the 1st of June, 1925.  From  this order, the  widow  appeals, contending that the trial court erred in failing  to  reduce the compensation of the executor to the statutory amount allowed under section 680.

The executor appeals, and assigns the following errors:
"I. The trial  court  erred  in finding that the grounds upon which  movent's  motion  is  based were established by the various writings which appear in the record, and particularly by the accounts filed by the executor.

 "II.  The trial court erred in finding 'that the work which is being done  by the executor at the present  time has been reduced to much  less than half of that which he did when he was appointed and for several months thereafter.'

 "III.  The trial  court  erred in  reducing  the executor's compensation from P1,000 to P400 a month, and in not denying movent's motion."
JOHNS,  J.:

The record speaks for itself.  At the  time of his appointment, all parties agreed that the executor should have and  receive P1,000 per  month for his services.

 The order of October 3,  1923, among  other things, recites the agreed  facts, and is largely founded upon  that stipulation.   The  present order, reducing  the executor's fee to P400 per month, from which both  parties have appealed,  was made on  June  13,  1925,  more than nineteen months after the original order  was made.  That  is to say, that at the time the last order was made, Rosenstock had  been acting as executor of the estate  for more than nineteen months, and,  as such, had been administering the affairs of the estate, with the ultimate view of winding up and  closing it.  It is very apparent that whatever reasons may have existed for allowing him  a  compensation of P1,000  per  month at  the time of his appointment have ceased to exist.   During that period, all of the assets and liabilities of the estate  should have been legally ascertained and  determined.   In other words, the character and class of the work which now devolves  upon the executor is of a very  different type  and nature now than  at the  time of his appointment.  Although by mutual consent his  compensation was fixed at P1,000  per month  at  the  time of his appointment, that was not a valid or binding contract continuous throughout the  whole  administration of the estate.  It was always subject to change and the approval of the court,  and to either an increase or decrease as conditions might warrant.  At all times the compensation of the executor  was a matter largely in the discretion of the probate court.

The original order  of October 3,  1923, and the  last order of June 13,  1925, were both  made in the court in which  the probate proceedings were pending,  and all matters pertaining to the estate  were peculiarly within the knowledge  and province of that court, by which all orders were  made; and in which  all accounts were  filed.  That is to say, from the date  of  the appointment of the executor until the  order of June 13, 1925, the lower court had before it all of the records, orders, and proceedings growing out of the administration  of the estate.  Based upon such records,  it found as a fact that under all of the existing circumstances the fee of the executor from  June 1, 1925, should be  P400 per month.

In matters of this nature, the findings and conclusions of the probate court are entitled to much  weight, particularly on questions of fact. It appears  from  the record that the widow-filed a motion for the removal of the executor, and that an exhaustive hearing was had and the motion denied.

 It may be that the feeling now shown to exist by the widow against the executor was the primary cause of her motion to have his  allowance reduced. Be that as it  may, the court of origin, in which  the probate proceedings  were pending, made the  reduction, and there is ample evidence to sustain its finding.

For the reasons above stated, there is no merit in the appeal  of the widow.  The judgment  of the lower court is in all respects affirmed.  Neither party to recover costs. So  ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.
Johnson, J., did not take part. 

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