8. VIRGINIA GARCIA FULE, and HONORABLE SEVERO A.

MALVAR, Presiding Judge, Court of First Instance of Laguna, Branch Vl, petitioners, vs. THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B. GARCIA, respondents. G.R. No. L-40502 November 29, 1976 x---------------------------------------------------x VIRGINIA GARCIA FULE, petitioner, vs. HONORABLE ERNANI C. PAO, Presiding Judge of Court of First Instance of Rizal, Quezon City, Branch XVIII, and PRECIOSA B. GARCIA, respondents. G.R. No. L-42670 November 29, 1976 MARTIN, J.: FACTS: 1. On April 26, 1973 Amado G. Garcia died, he owned property in Calamba, Laguna. 2. On May 2, 1973, Virginia G. Fule field with CFI Laguna a petition for letters of administration and ex parte appointment as special administratix over the estate. Motion was granted. a. there was an allegation that the wife was Carolina Carpio 3. Preciosa B. Garcia, wife of deceased, and in behalf of their child: Agustina B. Garcia opposed, which was denied by CFI. a. Preciosa alleged that Fule was a creditor of the estate, and as a mere illegitimate sister of the deceased is not entitled to succeed from him 4. CA reversed and annulled the appointment of Fule. a. Preciosa became special administratrix upon a bond of P30k. ISSUES: a.) Venue v. jurisdiction b.) What does the word resides in Revised Rules of Court Rule 73 Section 1 Mean? c.) Who is entitled? HELD/RATIO: a.) RULE 73 SECTION 1. if the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled at the CFI in the province in which he resides at the time of his death, And if he is an inhabitant of a foreign country, the CFI of any province in which he had estate. The court 1st taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceedings, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Fules own submitted Death Certificate shows that the deceased resided in QC at the time of his death, therefore the venue of Laguna was improper. Venue is subject to waiver (RULE 4 SECTION 4), but Preciosa did not waive it, merely requested for alternative remedy to assert her rights as surviving spouse. However, venue is distinct from jurisdiction which is conferred by Judiciary Act of 1948, as amended to be with CFIs independently from the place of residence of the deceased. RULE 79 SECTION 2, demands that the petition should show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts such as death, name, last residence, existence, situs of assets, intestacy, right of person who seeks administration as next of kin, creditor or otherwise to be appointed. b.) Resides ex vi termini actual residence - Elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. - Same meaning as inhabitant.

Popular sense the personal, actual or physical habitation of a person, actual residence or place of abode Must be more than temporary

Distinguished from legal residence or domicile requires bodily presence and an intention to make it ones domicile. c.) Preciosa is prima facie entitled to the appointment of special administratrix. The New Rules RULE 80 SECTION 1 broadened the basis for appointment of special administrator (temporarily) to take possession and charge of the estates of the deceased until the questions causing the delay are decided and (regular) executors or administrators appointed. Old rules basis ay: appeal of allowance of disallowance of a will; New: added - xxx delay in granting letters testamentary or of administration by any cause (includes parties cannot agree among themselves) including an appeal of allowance of disallowance of a will, the court may appoint a xxx The discretion to appoint a special administrator or not is with the probate court, the paramount consideration is the beneficial interest of the appointee in the estate of the decedent. In re: Fule, it is not required that the administratrix be entitled to share in the estate of the decedent only that one is entitled to the administration; but the preference of Preciosa is with sufficient reason the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. DISPOSITION: Fules petition DENIED.