MARINI-GONZALES v LOOD

FACTS:

September 19, 1969, Petitioner Giacomina Marini-Gonzales, (now-deceased and represented by the special administrator of her estate, Atty. Norberto J. Quisumbing) filed a complaint against her husband Rafael J. Gonzales and Celia Angeles-Pascua et al, in the then Court of First Instance of Rizal, for the annulment of allegedly fraudulent disposition if various properties, both real and personal, therein listed, made by the said Rafael in favor of his co- defendants, allegedly in fraud of Giacomina and in impairment of her interest in the conjugal partnership properties, and without her knowledge and consent. 

In answer, the defendant Rafael claimed that all the conjugal assets which are in his possession were not used in any way for or transferred to the other defendants; and that the properties owned by his co-defendants were not derived from the conjugal properties owned by him and the plaintiff. His co-defendants, for their part, alleged that the properties listed in the complaint were bought or acquired, not with funds from the conjugal partnership of plaintiff and defendant Rafael J. Gonzales, but with funds of the owners thereof. 

On September 5, 1970 defendant Rafael. On September 25, 1970, Giacomina in a pleading entitled "Notice of Death of Party and Omnibus Motion"  notified the court of the death of Rafael and her appointment by the CFI of Rizal as special administratix of his testate estate, and prayed that (1)she be substituted in the place of the deceased. (2)that the pleadings, motions and papers, including the Answer with Counterclaim filed by the decedent, be withdrawn and stricken out; and (3)that she be granted leave to amend her own complaint so as to allege therein her two capacities and rights — one, as wife and two, as special administratrix of the testate estate of the late Rafael J. Gonzales. 5 Later, the probate court appointed Giacomina as executrix in the testate estate of the late Rafael J. Gonzales. 6 She is also the sole heir under his will. 7

The respondent Judge denied the Omnibus Motion for lack of merit. Later Respondent Judge issued an order which appointed Atty Eliseo Zari (the assistant clerk of court) as the legal representative of defendant Rafael. Petitioner filed a motion for reconsideration which was denied. Then Petitioner filed an instant petition for certiorari with this court.

ISSUE: Whether or not, the respondent judge abused his discretion in ordering the respondent Atty Elseo Zaro to represent the deceased Rafael Gonzales as party defendant in this case.

RULING: Yes.

The appointment of Zari is null and void, in view of Petitioner’s appointment as executor of the testate estate her deceased husband and her being the sole heir under the will. Under the provision of Sec2 of Rule 87, it is the executor who may bring or defend actions in the name of the deceased, [and the choice of an executor is the sole prerogative of the testator and is not address to the discretion of the court.]

Also, Sec16 of Rule 3 provides, (par2) xxx heirs of the deceased may be allowed to be substituted for the deceased. xxx