Petitioner Emilio Advincula seeks a  writ  of certiorari, to annul certain orders of the Court of First  Instance of Negros  Occidental.

Said  petitioner  was, on November 22, 1954, appointed, special  administrator  of  the estate of  his deceased  wife, Josef a Lacson Advincula, in special proceeding No. 3245 of said court.   In due course, he was, on February 12, 1955, appointed  regular  administrator  of said  estate.  After Advincula  had qualified  as such,  the brothers  of the deceased, who left  no issue, submitted to the court, for allowance,  a document purporting to be her last will and testament.  Petitioner opposed the probate  thereof upon the  ground  that  it did  not bear the signature  of the deceased; that the signature thereon, if hers, was secured through fraud and duress;  and  that,. the instrument had not been executed with the requisite formalities.  On may 4, 1955, respondent Enrique Lacson, one of the brothers of the deceased, filed a motion praying that he be appointed administrator of said estate, in lieu of petitioner herein,  for the  reason that said respondent is the executor named in the aforementioned alleged will.  On or about May 16, 1955, Attys. Jose  Y. Torres and Antonio Lozada, as  counsel for Advincula, filed an opposition to said motion.   When the latter was called for hearing  on May 18,  1955,  Atty. Lozada  was served, in open court, copy of an amended  motion, of respondent Lacson, for change of  administrator,  dated May 14, 1955.   It was  alleged therein, in addition to  the ground set forth in the first motion: 

"5. That the present administrator  is incompetent, incapable and unsuitable to the discharge of the trust, he  being foreign to the estate, and  without  changing  or removing  him  as such  would be disastrous to  the estate and  to the  heirs  named in the will  of the decedent."

Atty. Lozada asked  a postponement of the hearing upon the  ground that Advincula's main counsel,  Atty.  Torres, was in Manila,  but his request was denied.   Then, after hearing the  argument of  opposing  counsel,  the court, presided over by respondent, Honorable Jose Teodoro,  Sr., Judge, issued, on the same date (May  18, 1955),  an order the  pertinent parts  of which read: 

"The Court,  after hearing  the  oral  arguments of both parties, finds the motion for postponement not well-taken and hereby denies the same;  and finding the motion dated May  4, 1955 as amended by  the  amended  motion  dated  May  14, 1955, well-founded  and the opposition  thereto  dated  May 16,  1955  not  well-founded,  said motion is hereby granted. 

"Wherefore, in  the interest of justice and for the preservation of the property for the heirs, the appointment of Emilio Advincula as administrator is hereby revoked and in his stead,  the oppositor, Enrique A. Lacson, is hereby appointed administrator of  this intestate estate,  and same may qualify by filing a  bond in the  sum of P5,000  and  taking and subscribing  the  corresponding  oath of Office.  Once said  Enrique A, Lacson  has qualified,  let  letters of administration  issue in his favor. 

"The former administrator, Emilio Advincula, is hereby ordered to submit within  ten  (10)   days  from receipt  hereof,  his  final account covering the entire period of his administration and should it  appear  that any deficiency has been, incurred  by him during his incumbency, his bond  shall answer for said  deficiency."

Thereupon, Lacson  gave  the requisite  bond, letters of administration  was  issued to  him, and he  tried to t take possession of the estate of  the deceased,  A reconsideration of said  order  of  May  1$,  1955, having been  denied by another order, dated May 30, 1955, petitioner instituted the  present  action  for  certiorari,  against  Lacson   and Judge Teodoro,  to  annul  his  aforesaid orders of May 18 and 30, 1955, upon  the  ground that  the same  were  issued  with grave abuse of discretion.  Upon the  filing of a  bond by Advincula, we issued, as  prayed for  in  his petition, a writ  of preliminary injunction restraining respondent Lacson and his agents from  interfering, molesting and harassing the  petitioner in the administration of the estate of the deceased,  during the pendency of this case.

The writ of certiorari prayed for is in order.   Lacson's appointment, in  lieu  of Advincula, as administrator  of the estate of Josefa Lacson Advincula,  is predicated upon the fact that the former is  named executor in the alleged will of said deceased.   The  provision therein to this effect cannot be enforced,  however, until after said  document has  been  allowed to  probate, for  section  4 of  Rule  79 of the Rules of Court provides: 

"When a will has  been proved and allowed, the court shall issue letters testamentary thereon to  the  person  named as  executor therein, if  he  is  competent, accepts the trusts,  and gives  bond as required by these rules." (Italics  supplied.)

Besides, the discovery of a document purporting to  be the last will and  testament of  a deceased, after the appointment of an administrator of the estate of the latter, upon the  assumption  that  he or she  had died  intestate, does  not ipso facto nullify the  letters of administration already  issued  or even authorize the  revocation thereof, until the alleged will has  been  "proved and  allowed  by the court."  Rule  83,  section 1, of the  Rules of Court,  is plain and explicit on this point. 

"If  after letters of  administration  have  been  granted  on  the estate of  a decedent as if he had died intestate, his will is proved and allowed by the  court, the  letters of administration  shall  be revoked  and all powers  thereunder  cease,  and the administrator shall  forthwith  surrender  the  letters to the court, and render his account within such  time   as the court directs.  Proceedings for the issuance of letters testamentary or of administration under the will shall be as herein before  provided."  (Italics supplied.)

The amended motion for change of administrator endeavored to  justify the removal  of  Advincula "by alleging that  he  is "incompetent, incapable  and unsuitable to the discharge  of the trust,  he  being foreign  to the  estate" of the deceased.   By holding, in its order of May 18, 1955, that said motion is "well-founded" with nothing, absolutely nothing  else, to  indicate the basis of this conclusion respondent Judge has impliedly adopted the line of argument followed in the above quoted allegation of the amended motion to change administrator.  Said argument is, however,  devoid  of merit.

It  is  untenable  from the  viewpoint of logic and  experience, because a stranger to deceased may be competent, eapable  and  fit to administer her  estate, in much  the same  as a member of her  immediate  family could be incompetent, incapable and unfit to  do so.  At any rate, Advincula is not a stranger, either to her or to her estate, he being her surviving spouse and, as such, one of  her forced heirs  (Arts. 887, 888, 892,  893,  894,  897 to 900, and 995 to 1001,  Civil Code  of the Philippines), whether she died testate or intestate.   What is' more,  he is prima facie  entitled to one-half of all  property  subject  to  the authority of the administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for "all property of the marriage is presumed to  belong to the conjugal partnership" of which he is its administrator  (Article  165,  Civil  Code of the  Philippines) "unless  it be proved that it pertains exclusively  to  the husband or to the wife" (See Articles 160 and 185, Civil Code of the Philippines).   Lastly, Advincula has not been found guilty  of any specific  act  or  omission  constituting one of the  legal grounds,  enumerated in Rule 83, section 2, of the Rules of Court,  for the removal  of  an executor or administrator.   Hence,  it is clear that respondent Judge exceeded his  jurisdiction in removing Advincula and  appointing  Lacson as  administrator  of the estate of  the deceased Josefa Lacson Advincula.

Wherefore,  the  aforementioned  orders  of  respondent Judge, dated  May 8 and  30, 1955, are reversed, and  the writ of preliminary injunction issued in this  case hereby made permanent, with costs against respondent Enrique A. Lacson.  It is  so ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes,  A., Jugo, Bautista Arbgelo, Labrador,  Reyes,  J.  B. L., and Endencia, JJ., concur.